Irwin v. McDowell

Belcher, C. This is an action to recover from the' defendant .the sum of three thousand dollars, and interest thereon, the payment of which is alleged to have been secured by a chattel mortgage.

The facts stated in the complaint are, in substance, as follows: On the twenty-third day of November, 1889, [120]one Robert L. Gouts executed to the plaintiff a mortgage on a crop of wheat, barley, and oats, then being planted on land in San Diego County, and to be harvested in the year 1890. The mortgage was properly verified, acknowledged, and recorded, and was given to secure payment of the mortgagor’s promissory note for sixteen hundred dollars and interest, and such further advances as the mortgagee might make to the mortgagor, not exceeding fourteen hundred dollars. Further advances were made to the amount of fourteen hundred dollars, thus making the whole debt secured three thousand dollars, no part of which, except a portion of the interest, had been paid. On the thirteenth day of August, 1890, the defendant, as sheriff of the county of San Diego, wrongfully and unlawfully levied upon the mortgaged crop a writ of attachment issued in favor of one Cave J. Gouts against the mortgagor, and before making the levy he did not pay or tender to plaintiff, or to any one for him, nor deposit with the county clerk or treasurer, the amount of the mortgage debt, or any part thereof, nor had he ever done so. Therefore, judgment was asked for three thousand dollars and interest.

The defendant, by his answer, admitted most of the averments of the complaint, and then set up facts to excuse the levy and exonerate him from damages.

The case was tried by the court without a jury, and, among other things, the court found that there was due and unpaid on the mortgage debt, for principal and interest, the sum of $3,126.49; that the levy was made on the property by the defendant’s deputy, and a keeper placed in charge thereof, on the thirteenth day of August, 1890; that on the next day the plaintiff demanded of the deputy the possession and return to him of the property attached, and that the deputy admitted he knew the property was mortgaged to the plaintiff, but refused to release it; that the action was commenced on the fifteenth day of August, 1890, and thereafter, on the sixteenth or seventeenth day of the same month, defendant directed his deputy to release the property, and