Kindall v. Lincoln Hardware & Implement Co.

QUARLES, C. J.

— On the fourteenth day of September, 1899, the respondent, the Lincoln Hardware and Implement Company, a corporation, sold to the appellant, Kindall, and the respondents C. S. Stone and E. E. Squires, one 32-Columbia thresher and 8-horse triple gear power, with divers fixtures thereunto belonging, conditionally, and entered into a contract of sale, under the terms of which said thresher, etc., was to remain the property of said corporation, who was to retain the title thereto until the said purchase price, with interest thereon, was fully paid. On the said date the appellant, Kindall, and the respondent Stone and Squires executed to said corporation, to secure the said purchase price, a mortgage upon the said thresher, horse power, and fixtures, and six hundred bushels of barley then stored in the granary of appellant, J. E. Kindall, and to further secure said purchase price the appellant, Kindall, and respondents Stone and Squires jointly executed on the said day another chattel mortgage, further mortgaging to said corporation the crops then growing and to be thereafter grown, and described as follows, to wit: “The crop of flax now being and growing on the north half of the northeast quarter and the north half of northwest quarter of section 28, township 32 north, range 2 east, Boise meridian, and containing sixty acres. One-half of all the crop of flax now growing and being on the southwest quarter of section 4, township 33 north, range 2 east, Boise meridian, containing one hundred and sixty acres. The crop of every description to be sown, grown, and raised on the above-described land, and also in addition to be grown and raised on the southeast quarter of section 17, township 32 north, range 2 east, Boise meridian, during the year of 1900, to have and to hold the beforementioned and described crop, subject to the provisions hereinafter contained.” It appears from the record that on the seventeenth day of November, 1900, the said corporation respondent commenced summary proceedings by notice and sale to foreclose the latter mortgage men *668 tioned above, upon certain barley and wheat that grew upon the said southeast quarter of section 17, township 32 north, range 2 east, Boise meridian, to satisfy the balance remaining due upon said purchase price secured by said chattel mortgages aforesaid, amounting then, as alleged in the affidavit accompanying the notice to the sheriff of Idaho county, to the sum of $335, with interest thereon from the fourteenth day of September, 1899, at the rate of eight per cent per annum, together with attorney’s fees for foreclosure, the sum of fifty dollars, and costs for foreclosure. The sheriff of Idaho county having seized the said twelve hundred bushels of barley and fifteen tons of hay under said chattel crop mortgage, the appellant, J. E. Hindall, and his wife, Armindia Alice Hindall, commenced an action for the purpose of enjoining the respondent the Lincoln Hardware and Implement Company from proceeding to foreclose said chattel mortgage, and in their complaint set forth divers grounds of defense to said foreclosure proceedings. After the commencement of this action, and during its pendency, the said wife of appellant, Hindall, departed this life, whereupon an order of substitution was made by the district court, authorizing and permitting said appellant, Hindall, to prosecute the action solely in his own name; and afterward, by amended complaint, the appellant, Hindall, set forth, among other defenses to the foreclosure of said chattel crop mortgage, that the said twelve hundred bushels of barley and fifteen tons of hay .mentioned in said affidavit and notice to the the sheriff, and which were seized by said sheriff under said chattel mortgage, and which said sheriff was about to sell, were grown upon fifty acres of land, and were the community property of appellant, Hindall, and his said wife, and that appellant’s said wife did not join in the execution of said mortgage. Said appellant claimed said twelve hundred bushels of barley and said hay as exempt from execution.

A careful examination of the record convinces us that the said twelve hundred bushels of barley and fifteen tons of hay were community property belonging to the appellant and his wife, and that the same were, under the provisions of section *669 4480 of the Devised Statutes of Idaho, as amended by the act of February 14, 1899 (Sess. Laws 1899, pp. 251, 252), exempt from execution. And we are also of the opinion that said chattel mortgage was void as to the said twelve hundred bushels of barley and fifteen tons of hay because of the failure of the wife of the appellant to join in the execution of said-chattel crop mortgage; as is required by the act of February 16, 1899 (Sess. Laws 1899, p. 292), the first section of which reads as follows: “No personal property of either'husband or wife, that is exempt by law from execution, shall be mortgaged by either husband or wife without the joint concurrence of both/-’

It is argued by counsel for respondents with much earnestness that said chattel crop mortgage is valid and enforceable against the appellant, Kindall, upon said twelve hundred bushels of barley and fifteen tons of hay; that upon the death of the wife the mortgage became valid as against appellant, Kindall, although it might have been otherwise as against both respondent and wife had the wife continued living. Unless the said crop chattel mortgage created a valid lien at the time of its execution upon the exempt property of Kindall and his wife, or either of them, the death of the wife would not, by operation of law, create a lien that otherwise did nob exist. In other words, the law requiring that the wife should join in the execution of a mortgage creating a lien upon exempt property, she must so do, else no lien is created. Her death after the execution of such chattel mortgage does not, by operation of law, make that a lien which otherwise was not a lien. Hence we conclude that such chattel crop mortgage created no lien in favor of the respondent the Lincoln Hardware and Implement Companjq and that the sheriff of Idaho county had. no right or authority to seize or sell the twelve hundred bushels of barley and fifteen tons of hay under said chattel crop mortgage, and that the said amended complaint in this respect stated a good defense to the said foreclosure proceedings.

Other questions are raised in the record by the appellant. He earnestly contends that the law will not permit a mortgagor, *670 as in the case before us, having two separate chattel mortgages upon different property and against joint parties, to single out a portion of the property so mortgaged, belonging to one of the joint mortgagees, and proceed in a summary manner, under the statutes, by sheriff’s notice and sale, to foreclose his mortgages by piecemeal. But in our view of the case, the question of exemption above set forth is conclusive of this case, and entitled the appellant to the relief which he sought, to wit, to have an injunction restraining the respondent mortgagee and said sheriff from selling said barley and hay under said summary proceedings. Hence it is unnecessary to pass upon the other questions raised.

Other questions are raised by counsel for appellant in his argument and brief, but we do- not deem it necessary to decide them upon the record before us.

It is alleged in the complaint of appellant that his comortgagors, Stone and Squires, refused to join in with him in this action, for which reason they were made defendants;

For the foregoing reasons, the judgment in favor of respondents, dismissing this action, is reversed, and the cause remanded to the district court for further proceedings in harmony with the views expressed herein. Costs of appeal awarded to appellant.

Sullivan and Stockslager, JJ., concur.