DocketNumber: No. 14,126.
Citation Numbers: 75 P.2d 1041, 101 Colo. 591, 1938 Colo. LEXIS 319
Judges: Knous
Filed Date: 1/17/1938
Status: Precedential
Modified Date: 10/19/2024
THIS is a replevin action and was previously before this court as Stokes v. Kirk, the decision being reported in 97 Colorado, 96 (
Stokes asserts that the lower court, upon the cause being remanded, should have entered judgment in her favor without further proceedings, and that it erred in permitting Kirk to file the pleadings mentioned and in not sustaining her demurrers thereto.
It is our conclusion that the court was within its discretion in permitting Kirk to file his amended and supplemental pleadings and that Stokes' demurrers to the latter were properly overruled. Under this view it will not be necessary for us to discuss the propriety of the court's action in allowing the particular amendments to the complaint and replication here involved. In our former decision we held that the lien of the Stokes' mortgages, junior in point of recording, was superior to the lien of the Kirk mortgage upon the day the replevin suit was instituted by reason of the failure of Kirk to file or record the statement required by section 8, chapter 32, C. S. A. '35, and to properly extend his mortgage in accordance with section 13 of said chapter. In other words, it simply was determined that Kirk, by reason of his failure to comply with the sections of our chattel mortgage law mentioned, had, as against the junior mortgages, lost the prior lien first enjoyed by him and that under these circumstances the junior mortgagee was entitled to possession of the chattel property. The original validity of none of the mortgages was involved and the sole question decided was as to the priority of the liens of these encumbrances as between the parties. It was not, and could not therein have been adjudged that any of the involved mortgages were invalid as between the respective mortgagees and the mortgagor.
[1, 2] The amended supplemental complaint, in substance, alleged that since the institution of this suit and during the pendency thereof, the indebtedness secured by the chattel mortgages of Stokes, the lien of which this court held was superior to the lien of the Kirk mortgage, had been satisfied and paid in full to Stokes by the *Page 595
original mortgagor whereby said mortgages were extinguished and released and all rights of Stokes thereunder terminated. The demurrer, of course, admitted the truth of these allegations. It is to be observed that in Colorado, if a chattel mortgage provides, as did the mortgages here, that the mortgagor may retain possession of the mortgaged property, the mortgagee is invested with legal title only, but on default the right of possession of the mortgagor is forfeited to, and vests in, the mortgagee for the purpose of sale, subject only to the right of redemption by mortgagor pending sale or for an accounting of the proceeds thereof. McCormick v. FirstNat. Bank,
[3] Under our opinion rendered when the case was formerly here, it was this limited possession to which Stokes was entitled on the day the replevin suit was instituted. With the attending circumstances as to possession present, she accepted payment and satisfaction of the whole amount due under her note, payment of which was secured by the chattel mortgages. Where the debt represented by a chattel mortgage is paid or discharged, the title or interest transferred by the mortgage is extinguished and with the extinguishment of the mortgage the right of the mortgagee to possession terminates. 11 C. J., p. 674, § 442.
[4] Likewise on payment of the debt secured by a first mortgage, a second mortgage on the same property becomes eo instanti a prior lien and the holder of the second mortgage is entitled to the possession of the mortgaged property according to the terms of his mortgage.Ford v. Coweta Hdw. Co.,
[5, 6] It was within the discretion of the trial court to permit the filing of the supplemental pleadings alleging full payment of the Stokes' mortgage indebtedness pendente lite. Our Code, section 80, provides, inter alia: "When facts occurring subsequent to the commencement of an action render it proper, the same may, by leave of the court, be presented by supplemental pleadings and issue taken thereon as in case of original pleadings." The purpose of this provision is to permit parties to avail themselves of any matter which has a bearing upon litigation, even though it has arisen subsequent to the institution of the proceeding, so that the entire controversy may be settled in one action. It has been held that in a replevin case where facts have arisen since the beginning of the action and before final judgment which would vary the relief to which the plaintiff would have been entitled at the commencement of the proceeding, such facts may be alleged by supplemental pleadings.Haltom v. Nichols Shepard Co.,
[7] At the time of the commencement of the case at *Page 597 bar, the only question involved was the priority of the respective liens of the successive chattel mortgages of the parties. As has been pointed out, when the lien, to which the priority is claimed to attach, ceases to exist by reason of payment, then the priority also, which is but an incident to one and presupposes two liens, ceases to exist, and from that moment any question of priority is moot. The fact of payment of the indebtedness secured by the prior chattel mortgage, therefore, becomes proper to be determined at any time before final judgment as a preliminary to the determination of whether any lien thereunder still exists. Allegations of the supplemental complaint, admitted by the demurrer, show the extinction of such lien by payment and, therefore, the extinguishment of its previous priority. Only so long as Stokes' lien existed, was she entitled to rely uponpriority as against Kirk's mortgage.
[8] The case of Galbreath v. Wallrich,
Accordingly the judgment is affirmed, all costs up to the time of the filing of the amended supplemental complaint to be taxed to Kirk and those accruing thereafter to Stokes.
MR. JUSTICE HOLLAND dissents. *Page 599
Stokes v. Kirk , 97 Colo. 96 ( 1935 )
International Harvester Co. of America v. Lawrence ... , 95 Colo. 523 ( 1934 )
Silver State Building & Loan Ass'n v. Independence ... , 96 Colo. 559 ( 1935 )
Brown v. Chowning , 59 Okla. 278 ( 1916 )
Ackerman v. C. C. Chapell Hardware Co. , 41 Okla. 275 ( 1913 )
McFadyen and Brown v. Masters , 11 Okla. 16 ( 1901 )
McCormick v. First National Bank , 88 Colo. 599 ( 1931 )
Broyles Et Ux. v. McInteer , 29 Okla. 767 ( 1911 )
Stone v. American Nat. Bank , 34 Okla. 786 ( 1912 )
Bottoms v. Clark , 38 Okla. 243 ( 1913 )
Ford v. Coweta Hardware Co. , 49 Okla. 523 ( 1915 )