Ely v. Williams

[456]

TAGGART, J.

Appeal from a judgment in favor of plaintiff in an action of claim and delivery.

Plaintiff is the mortgagee and defendants are the mortgagors of the personal property which is the subject matter of the action. The court finds: The defendants gave a chattel mortgage to secure the payment to plaintiff of a certain protnissory note set out in the mortgage, which was given as the purchase price for the goods mortgaged; they defaulted in the payments therein provided to be made; and plaintiff demanded possession of said personal property from them in accordance with the terms of said mortgage; they refused to deliver the property to plaintiff, and upon such refusal he brought this action and caused the sheriff of Kern county to take possession of the property. Defendants reclaimed the property and resumed possession thereof by giving the undertaking provided by law for that purpose. Prior to the filing of the complaint in this action, but on the same day, plaintiff . instituted an action in said superior court wherein, in due course, he obtained judgment against defendants for the balance found due on said promissory note, foreclosing said chattel mortgage and decreeing that said property be sold to satisfy said judgment. The judgment in the case at bar is in the alternative form, in favor of the plaintiff for the recovery of the personal property described therein, or for its value, which is found to be $1,800.

The question to be determined on this appeal, as stated by appellants in their brief, is, “whether under the mortgage, a replevin suit for the possession of the mortgaged property may be prosecuted [by the mortgagee against the mortgagors] pending an action to foreclose the mortgage?” It is urged that when plaintiff elected to foreclose his lien and began his action under section 726 of the Code of Civil Procedure, the very provision of the law which authorized such a suit forbade the prosecution of any other action. That section 726 provides there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property, and plaintiff exhausted his right of action by the foreclosure suit.

The mortgage contains the following clause: “It is also agreed, that if the mortgagors shall fail to make any payments as in the said promissory note provided, then the mortgagee