Moore v. Ryan

Philips, P. J.

I. After condition broken the defendant became entitled to the possession of the mortgaged property, as he was jhen the legal owner. Until foreclosure, pursuant to the provisions of the mortgage, the plaintiff had an equity of redemption. And while so long as the mortgagee holds the property under the forfeiture, the mortgageor cannot retake it without paying the mortgage debt, yet if the mortgagee shall proceed 'to a foreclosure under the provisions of the deed, he does so for the purpose of realizing his debt; and when he has thus recovered the amount of his debt, that is the accomplishing of the main purpose and office of the mortgage. These are now well-settled principles of the law of chattel mortgages.

II. It would seem to follow as a necessary corollary from these postulates, that where the mortgage covers several parcels of property, and the mortgagee proceeds to foreclose and sell, by selling each parcel separately, the moment he has realized enough to satisfy the debt- and charges he should stop the sale; and his title to the residue of the mortgaged property is then extinguished.. He then becomes a trustee of the remaining property for the benefit of- the mortgageor ; and his-refusal to surrender to the mortgageor the property, not necessary to be sold to make the debt, is tortious, and would invite the action of replevin or trover, according to the fact. Charter v. Stevens, 3 Denio, 33; Jones Chat. Mort., sec. 798.

III. Giving the defendant the benefit of every reasonable doubt arising on the proofs, the aggregate amount of principal and interest due on the note at the time of the sale was not over $126.80. The horses were first sold, and brought one hundred and thirty dollars. This was $3.20 more than the amount of the debt. This, therefore, released the cow from the operation of the mortgage; and she then being in the possession of the mortgageor, nothing remained to be done to restore his legal title. The defendant, in order to escape the legal effect of this state of facts, contends, first, that he was entitled to have deducted from the one hundred and thirty dollars the expense of such sale. There was, however, no evidence of any expense attending the sale. The defendant wrote the notices of sale, and put them np in person, and he also cried the sale. At the trial he made no claim on this account, and offered no proof of any expenditure of money, or of the value of his services. It was not the duty of the plaintiff, in the first instance, in making out a prima-facie case, to make the defendant a voluntary offer of compensation for his voluntary services ; and if the defendant had or intended to make, any such claim he should have asserted it at the trial, and tendered proof. The amount of- such expenses and charges was a matter peculiarly within his knowledge, and is not presumed to be within the knowledge of the plaintiff. In such case the burden of proof rests upon the defendant. His silence at the trial, when he should have spoken, justifies the conclusion that he made no such claim. He placed his defence for witholding from plaintiff the cow upon no such claim ; and upon well-settled principles of law he must defend in this form of action upon the specific ground taken by him when demand for possession was made and the trial had. Wells on Replevin, sec. 381; Boardman v. Sill, 1 Camp. 410.

He now insists further, that he is entitled to have his commission of two per cent, for selling the property, as provided in section 3318, Revised Statutes. Waiving any discussion of the question, as to whether this statute has any application to the instance of a mortgagee,, under a chattel mortgage with power of sale, who conducts his own sale for his own benefit, what has just been said respecting the matter of other expense, is equally applicable to this. And, furthermore, if the commission of two per cent, were allowed him, it would amount to only $2.60, still leaving in his hands $1.20 after satisfying the mortgage.

IY. Though not clearly expressed, and little urged at this bar, an instruction, asked by defendant and refused by the court, suggests the idea that, after the foreclosure sale there was an agreement between the parties, by which the defendant consented that plaintiff might yet redeem the property,. and that if he failed to do so, the verdict should be for the defendant. While not suggested by counsel, the mortgagee having purchased at his own sale, left the right of the mortgageor to redeem unforeclosed. Such a sale, though not void, is voidable at the election of the mortgageor, by paying off the mortgage debt. Allen v. Ransom, 44 Mo. 263; Reddick v. Gressmore, 49 Mo. 389. If, after having knowledge of such sale and purchase by the mortgagee, the mortgageor acquiesced therein, he could not call on a court of equity to aid him in setting aside such sale. Medesker v. Swaney, 45 Mo. 273. It may be conceded to defendant, that, even after the foreclosure proceedings, •it was competent for the mortgagee, by parol agreement, to waive or open up the foreclosure, and reinstate the mortgage for the purpose of redemption. Phelps v. Hendrick, 105 Mass. 107. Such waivers presumably and ordinarily are matters for the mortgageor to insist upon, as it is alone for his benefit; whereas the mortgagee assumes in this instance the remarkable attitude of insisting that his own foreclosure was waived, and that the mortgageor is entitled to redeem. And yet at the trial he stoutly denied that any part of the money paid him by the plaintiff, after his return home, was on account of interest on the note. He cannot complain if the court should accept his evidence, in this respect, as true.

Without reviewing the evidence in detail, which, properly understood, does not sustain defendant’s contention, the fact that defendant, as soon as this action was brought in the justice’s court, disposed of the horses at private sale as his absolute property, without any further foreclosure sale, shows conclusively that he did not regal’d the first sale as abandoned, and the foreclosure reopened. He must accept the logical result <*>f his own action, which in this case speaks louder than words. • ■

On the merits the verdict and judgment were for the right party, and in our opinion should not be disturbed.

The other judges concurring,

the judgment is affirmed.