Marcum v. Coleman , 8 Mont. 196 ( 1888 )

Bach, J.

This is an appeal from a judgment which was entered upon an order sustaining a demurrer to the complaint. The complaint sets out that the plaintiffs, by virtue of a certain chattel mortgage, are entitled to the immediate possession of the chattels mentioned in the complaint; that the defendants have, at the instance of certain creditors of the mortgagor, wrongfully seized and levied upon said chattels. The demurrer is based upon, first, what is claimed to be a defective affidavit to the mortgage; second, that the complaint does not allege that the mortgage was filed in the proper county; and, third, that the complaint does not show that the mortgage is still unpaid.

As to the first and second grounds we express no opinion. The mortgage, if void at all, would be void only as to attaching or execution creditors and purchasers; as between the mortgagor and mortgagee, and as between the parties to a chattel mortgage and third parties having no rights against the mortgagor, neither a delivery of the goods nor a filing of a properly drawn mortgage is necessary. In order to justify the taking by a creditor, he must show his interest and a lawful right against the property, either by an attachment properly issued, or by an execution based upon a valid judgment. And the defendants herein, basing their action upon the rights of certain creditors, must show all that those creditors would have been obliged to show.

In Ford v. McMaster, 6 Mont. 240, it was held that the sheriff, in order to justify the taking of the property of A by virtue of an execution against property of B, on the ground that the conveyance from B to A was fraudulent as to creditors, must show not only the execution, but a valid judgment as well. As far as the complaint shows, the defendants are mere trespassers; and as against such parties, the plaintiff is not obliged to show either an actual delivery of the chattels to himself, or a constructive delivery by a chattel mortgage drawn and filed in strict compliance with the law. As to the third ground of demurrer; the complaint shows that the mortgage debt was not due when the complaint was filed, and it was not necessary for plaintiff to allege non-payment under such circumstances. The judgment is reversed.

Judgment reversed.

McConnell, C. J., and Liddell, J., concur.