First Nat. Bank v. Wesson , 109 Okla. 225 ( 1925 )

Several assignments of error are made in the petition in error, but only two propositions are urged for reversal in the brief of defendant. The first proposition reads:

"Under the undisputed evidence in this case the defendant, First National Bank, as a matter of law was entitled to possession of the property at the time such possession was taken."

This contention is based upon the claim that the terms and conditions of the mortgage had been broken by reason of the plaintiff taking said property with him upon this fishing and hunting trip into Sequoyah county. No effort was made by the defendant to prove that the plaintiff was upon other than a temporary visit upon this occasion, and no effort was made to show that he took said property away from Henryetta with the intention of concealing or removing it permanently to another location. On the contrary, the testimony of the plaintiff is clear and convincing that for a long number of years he had been in the habit each year of making this kind of a trip to Sequoyah county for the purpose of visiting his relatives living there, and for the purpose of fishing and hunting, and that this was his purpose on this occasion.

It is provided by section 7659, Comp. Stat. 1921 (Rev. Laws 1910, sec. 4039), that:

"If the mortgagor voluntarily removes or permits the removal of the mortgaged property from the county in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due."

By section 8204, Comp. Stat. 1921, it is provided:

"The sale by a pledgee of property pledged must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property, and must be for the highest obtainable price."

That section 7659, supra, was not intended to interfere with or circumscribe the reasonable use by the mortgagor of the mortgaged property is too clear to require argument, the general theory of our mortgage law being to leave title and right of possession of the property in the mortgagor, subject only to the lien. The lien gives no right of control or possession to the mortgagee until breach of some condition matures the mortgage. By section 7652, supra, the transitory use of personal property by the mortgagor is recognized and its situs during such transitory use is fixed in the county of the mortgagor's residence. Filing of the mortgage an that county is notice to the world, until the property "is permanently located" in another county as determined by section 7651, supra, when a new filing is required. First Nat. Bank of Vinita v. Guess et al., 72 Okla. 125, 179 P. 29.

It is therefore concluded upon the first proposition that the verdict of the jury to the effect that there was no breach of the condition of the mortgage against removal is reasonably supported by the evidence, and is not contrary to law.

Defendant's second proposition reads:

"After breach of chattel mortgage and possession taken by the mortgagee, in order to discharge the mortgage lien, it is necessary for the mortgagor or his agent to tender to the mortgagee not only the principal and interest due but all costs which have been incurred in taking possession of the property up to the time of the tender."

No breach of the terms and conditions of the mortgage by the removal of the property from Henryetta on this occasion being shown, the only other ground upon which the seizure of the property by the bank on this occasion could be sought to be justified is that the $10.50 note was due on September 1. No demand for payment of this note was made prior to the seizure. A complete answer to this contention, if it be relied upon, is that the next day after the property was seized, and as soon as he learned of the seizure, plaintiff in person made a tender of $80 to the constable who had the property in charge, which was more than enough to pay the principal and interest of the $10.50 note and the expenses and per diem of the constable, who states that his fees and expenses amounted to $40. The principal note for $135.75 was not due until December 4. The execution and delivery by the plaintiff of the $10.50 note maturing September 1 did not change the maturity of the original note nor accelerate the maturity of the mortgage. It merely operated to increase the amount of indebtedness against the mortgaged property which could be enforced on or after December 4 on default on the part of the plaintiff at that time. Defendant showed no right to the possession of the property at the time it had the constable seize the same, and it certainly had no right to refuse the tender made by the plaintiff covering the indebtedness then due under the mortgage, which included the $10.50 note and the fees and expenses of the constable, amounting in the aggregate to $50.50. The $80 tendered at that time was sufficient to extinguish every claim of the bank against the plaintiff then due it and to give the plaintiff a credit upon his original note.

There is ample evidence in the record to sustain the finding of the jury and to support the judgment of the court based thereon. It is, therefore, recommended that the judgment of the trial court in this action should be in all things affirmed.

By the Court: It is so ordered.