DocketNumber: No. 6771.
Citation Numbers: 100 P.2d 946, 61 Idaho 254
Judges: HOLDEN, J.
Filed Date: 3/18/1940
Status: Precedential
Modified Date: 1/12/2023
The implication from the majority holding is that where a party holds both real and chattel mortgages as security for a debt and forecloses the real estate mortgage prior to the foreclosure of the chattel mortgage, thus not following the order of procedure prescribed in section
This conclusion is based on the premises that as the provisions with regard to the foreclosure of a chattel mortgage must be strictly followed, so must the order in which real and chattel mortgages are to be foreclosed as provided by section
With regard to the latter premise, section
Conceding the order prescribed by section
Respondent acquiesced in the foreclosure of the real estate mortgage. He knew of the chattel mortgage since he was mortgagor therein, but interposed no objection to the inverted foreclosure and thereby in effect waived any objection thereto. *Page 261
(Johnson v. Kaeser,
On the identical point herein, i. e., incorrect order of foreclosure and necessity of adherence to the requirement of but one action, the courts have granted the right to enforce full payment of the debt by a second or further foreclosure. (Gerig v. Loveland,
The judgment should be reversed and the cause remanded with directions to permit the foreclosure of the chattel mortgage by notice and sale to proceed.
Morgan, J., concurs in this dissent.
Petition for rehearing denied.