Opinion
No. 5255.
December 30, 1929.
APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.
Action on a note. Judgment for plaintiff. Affirmed.
Bothwell Chapman, for Appellants.
Where both parties respectively move for an instructed verdict and do no more, they thereby assume the facts to be undisputed, and, in effect, submit to the trial court the determination of the inferences to be drawn from them. ( Oregon Short Line R. R. Co. v. Mountain States Tel. Co., 41 Idaho 4, 237 P. 281.)
In proceedings to foreclose a chattel mortgage summarily by notice and sale it is incumbent upon the mortgagee to first make a demand upon the mortgagor for peaceable possession, if the mortgagor is to be found within the county where the mortgage is being foreclosed, prior to and before placing the affidavit and notice, requiring the officer to take the mortgaged property into his possession and sell the same in the hands of the sheriff of the county or constable of the precinct where the property is located. (C. S., sec. 6379, 6380; Tappin v. McCabe, 27 Idaho 402, 149 P. 460; Gandiago v. Finch, 46 Idaho 657, 270 P. 621 at 624; Hudson v. Carlson, 31 Idaho 196, 170 P. 100.)
A mortgagee who has not followed the statutory methods provided for the foreclosure of chattel mortgages is precluded from maintaining an action to recover a deficiency in a suit on the note secured by the chattel mortgage. ( Rein v. Callaway, 7 Idaho 634, 65 P. 63; First Nat. Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19; Berg v. Carey, 40 Idaho 278, 281, 232 Pac. 904; Portland Cattle Loan Co., v. Biehl, 42 Idaho 39, 45, 245 P. 88.)
A contract to convey community property which is not acknowledged by the wife is absolutely void. ( McKinney v. Merritt, 35 Idaho 600, 208 P. 244; Elliott v. Craig, 45 Idaho 15, 260 P. 433; Hart v. Turner, 39 Idaho 50, 55, 226 P. 282; Fargo v. Bennett, 35 Idaho 359, 206 P. 692; Weiser Loan Trust Co. v. Comerford, 41 Idaho 172, 238 P. 515; Hughes v. Latour Creek R. Co., 30 Idaho 475, 166 P. 219; C. S., sec. 4666.)
S.T. Lowe, for Respondent.
Upon the failure of the mortgagors to turn over and deliver possession of the personal property described in said affidavit and mortgage to the mortgagee, under and by virtue of said affidavit, the sheriff was authorized to take the mortgaged property and sell the same. (C. S., sec. 6380; Hudson v. Carlson, 31 Idaho 196, 170 P. 100; First Nat. Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19.)
The contract was a valid contract, because:
(a) It was signed by all of the parties to the former contract for the sale of real estate.
(b) It was not a contract for the sale of real estate and there is no statutory provision requiring the same to be recorded.
(c) If the contract were a contract for the sale of real estate, which it was not, it would not be within the letter of C. S., sec. 4666. ( Childs v. Reed, 34 Idaho 450, 202 P. 685.)
This is an action on a note to recover a deficiency resulting from the foreclosure of a chattel mortgage which secured said note. The note and mortgage were given under the following circumstances:
Plaintiff and his wife agreed by a duly executed and acknowledged contract to sell on instalment payments certain real estate to defendants. Default was made in the payment of the purchase price but the purchasers remained in possession. Later the parties entered into a supplemental contract, recognizing a forefeiture by reason of the defendants' default, but among other provisions extending the time of payment and providing that contemporaneously with the execution of the second agreement defendants would execute a note for $2,000 secured by the chattel mortgage involved herein. It was also provided that if the balance of the agreed purchase price was not paid by January 1, 1924, defendants' possession of the premises would be considered unlawful, and possession surrendered, etc.
This supplemental contract was signed but not acknowledged by the parties.
Defendants defaulted in their payments and the note secured by the chattel mortgage being past due and unpaid, demand was made by the plaintiff for the possession of the chattels covered by the chattel mortgage. The demand not having been complied with, on the same day an affidavit for foreclosure of the chattel mortgage, and notice of sale, were placed in the hands of the sheriff and by him served on the defendants. The mortgaged property was sold by the sheriff and a return made that there remained due the sum claimed herein.
Defendants contend that the note on which the action is based was without consideration because the supplemental contract was not acknowledged as required by C. S., sec. 4666, and allege that the foreclosure proceedings by notice and sale were not conducted in a legal manner.
The supplemental contract extended the time of payment called for by the earlier contract. This did not involve the sale, incumbrance or transfer of community real property and did not require acknowledgment. ( Hensel v. Bissell, 110 Wn. 568, 188 Pac. 774.)
In a line of cases analogous to the case at bar, it has been held that agreements made subsequent to a contract for the transfer of real estate, which subsequent agreements relate merely to details of the earlier agreement, such as the time of payment, are not agreements relating to the transfer of real estate and therefore need not be in writing. ( Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S.W. 860; Neola Elevator Co. v. Kruckman, 185 Iowa, 1254, 171 N.W. 743; Stout v. Edwards, (Mo.App.) 210 S.W. 128.)
Similarly in the case at bar, the subsequent agreement modified certain details of the earlier agreement but did not itself relate to the transfer of community property.
Defendants also urge that the foreclosure proceedings were void because no opportunity was given defendants to surrender the mortgaged property prior to the service of the affidavit and notice of sale by the sheriff.
Both sides asked for an instructed verdict; hence if there is competent evidence to support the trial court's action in instructing for plaintiff such action will not be disturbed. ( Oregon Short Line R. Co. v. Mountain States Tel. Co., 41 Idaho 4, 237 P. 281.) There was evidence to the effect that the mortgagee and sheriff proceeded to the home of the mortgagors and served upon them a notice signed by the mortgagee demanding possession of the mortgaged property. The demand was not complied with, whereupon the sheriff under proper affidavit took possession of the property.
The instructed verdict was justified.
The other errors assigned have been examined and are without merit.
The judgment is affirmed. Costs awarded to respondent.
Budge, C.J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.
Petition for rehearing denied.