Mitchell, Lewis & Staver Co. v. O'Neil

The opinion of the court was delivered by

Scott, J.

The defendants purchased a threshing machine of the plaintiff, giving their notes for the purchase price, with a chattel mortgage upon the property purchased, and also a real estate mortgage upon certain land to secure the payment of the notes. This action was brought to foreclose the real estate mortgage. Judgment was rendered for the defendants and the plaintiff has appealed.

The main attack is directed upon the findings of fact made by the trial court, and while some of them may be open to criticism, it yet seems to us that the judgment of the court was right. One of the contentions between the parties was that the property purchased was not as warranted by the plaintiff. But plaintiff contends that the defendants had not complied with the terms of the warranty as to the giving of notice of defects, etc. It was further contended by the defendants, that the defect was a hidden one, and that notice of it was given as soon as it was discovered; but that, in any event, upon the giving of such notice the plaintiff came and took the property. The contention upon the part of the plaintiff was, as against this, that it took the property under proceedings to foreclose the chattel mortgage. /¡

It appears that a notice to foreclose the mortgage out of court, under the provisions of §§ 1650 to 1655, Gen. Stat. (Vol. 1 of the Code), was drawn and signed by the attorneys for the plaintiff and sent to the sheriff of Whatcom county; that the sheriff took possession of the property and sold it after posting notices, etc. But the defendants contended that there was no foreclosure of the mortgage, in consequence of the failure of the sheriff to serve upon them the notice prescribed. The return of the sheriff is as follows :

“State of Washington,) County of Whatcom. ) ss.

“I hereby certify that I received the annexed ‘ Notice of Sheriff’s Sale ’ on the 16th day of June, A. D. 1895, and thereafter on the 17th day of June, A. D. 1895, I served one of the said copies upon Robert O’Neil, by delivering to and leaving with - O’Neil, father of said Robert O’Neil, at his usual place of residence, in the County of Whatcom, State of Washington. And on said 17th day of June, I posted three of said ' Notices ’ in public places in said county, and on the 28th day of June, A. D. 1895, I sold the machinery described in said notice, at public auction, to Mitchell-Lewis & Staver Co., who was the highest bidder therefor.

“ Dated this 11th day of November, A. D. 1895.

“ J. J. Bell,

“ Sheriff of Whatcom County,

“ State of Washington.”

The court allowed the defendants to prove that they were residents of and lived in Whatcom county during the times in question, and that no notice of foreclosure was served upon them, and that the defendant Robert O’Neil’s father, upon whom the substituted service is claimed to have been made, resided at a different place in said county. The plaintiff contends that this proof was inadmissible on the ground that the sheriff’s return could not be contradicted. If the return was to be construed to show a service upon the father of Robert O’Neil, at Robert O’Neil’s usual place of residence, we think that last statement could be contradicted, and that it is not within the rule contended for by the plaintiff. But the return in this case is utterly insufficient to show any authority or right to make the substituted service upon the father of Robert O’Neil. There is no statement therein that the defendants could not be found; nor does it appear that the attempted service upon the father was made at the dwelling house of the defendants.

In consequence of a failure to serve the notice, there was no foreclosure of the mortgage under the statute, and it must be held that the sheriff took possession of the property merely as the agent of the plaintiff, and, by selling the property without foreclosing the mortgage, the plaintiff was not entitled to recover for a deficiency. Jones, Chattel Mortgages, (4th ed.), § 711.

The court found that there was no foreclosure of the mortgage, and this finding must be sustained, and and that of itself warranted the judgment entered.

Affirmed.

Anders, Dunbar and Gordon, JJ., concur.