MacArthur v. J. G. Peppard Seed Co.

286 P. 955, 75 Utah 546, 1930 Utah LEXIS 32

• Court: Utah Supreme Court
• Decided: March 19, 1930
• Docket: No. 4867.
• Status: Published

Opinions

CHERRY, C. J.

This is an action for damages for the alleged conversion of certain alfalfa seed by the defendant, of which the plaintiff claimed to be the special owner as mortgagee. The trial court found that the plaintiff's mortgage debt had been paid in full and gave judgment for the defendant. The plaintiff appeals.

The plaintiff had a real estate mortgage executed by Mary B. Jarvis, March 1, 1917, to secure the payment of a note for $8,000, signed by the mortgagor, on an 80-aere tract of land in Millard county. After the mortgage was executed the mortgagor was married to C. L. Skinner. On April 13, 1925, to further secure the payment of the $3,000 note referred to in the real estate mortgage, C. L. Skinner and his wife, Mary B. Jarvis Skinner, executed a chattel mortgage to the plaintiff on certain of the crops sown, planted, grown, or harvested on the land described in the real estate mortgage during the years 1925, 1926, and 1927. In November, 1926, the plaintiff got a deed for the mortgaged land from Mrs. Skinner. After getting the deed the plaintiff brought this action against the defendant, claiming that the Skinners had, in February, 1926, delivered to it a certain quantity of alfalfa seed covered 'by the plaintiff’s chattel mortgage which the defendant had converted to its own use, to plaintiff’s damage in the sum of $450.

One of the defenses to the action was that the deed to the land was given to the plaintiff by Mrs. Skinner in full payment of the mortgage debt and that therefore the plaintiff had no ownership of the alfalfa seed in question.

The sole question here is whether the finding of the trial court that the deed was given in full satisfaction of the mortgage debt is sustained by the evidence.

The evidence upon the subject is brief. The plaintiff admitted taking the deed for the land; said that he intended that they should give him the land or he would foreclose and take a deficiency judgment against them; that when he took the deed he told Mrs. Skinner it was to save her the possibility or certainty of his getting a deficiency judgment against her or her husband, and for that reason she gave him the deed. Mrs. Skinner testified: That the plaintiff called on her and asked about the payment of the debt due him; that she told him they didn’t have anything to pay with and that if it would satisfy him and help him any to get his money out of the deal she would turn over a deed to him if that would free her from the responsibility of the mortgage; that the plaintiff thereafter fixed the deed out and sent it to her and that she signed it and mailed it back to him; that she never got back any of the mortgages or papers from the plaintiff at all; that nothing was said about the chattel mortgage at that time, and that she took it as the understanding that she was through when she gave him the deed and that there was nothing else to fix up.

There is no substantial conflict in the testimony of these two witnesses. It may well be that the plaintiff intended, if he did not get the land, to foreclose his mortgage and get a deficiency judgment against Mrs. Skinner and that to prevent a deficiency judgment against herself and husband Mrs. Skinner was willing to deed the land to plaintiff. That reason for making the settlement could very naturally and consistently foe followed up by the agreement, as testified to in substance by Mrs. Skinner, that the conveyance was made to the plaintiff to satisfy him, to help him get his money out of the deal, and to free her from responsibility. That there was no intention of the conveyance being made in part payment of the debt is clearly indicated by the failure to mention or agree upon any value of the land or amount for which it should be conveyed. In such circumstances, and where a contrary intent is not manifested, the finding that the intent was to cancel and extinguish the mortgage debt is justified. Weston v. Livezey, 45 Colo. 142, 100 P. 404; Citizens’ Trust Company v. Going, 288 Mo. 505, 232 S. W. 996; 41 C. J. 776.

The contention of the plaintiff is that for the deed to the land the mortgagors were to be freed from personal liability of the mortgage debt. But if he was permitted to recover on his chattel mortgage it is plain that the defendant would in turn be entitled to recover against the mortgagors for the seed in question which it took from them, the final result of which would he to indirectly subject the mortgagors to personal liability for the claim sued upon by the plaintiff. This result would violate the purpose and intent of the parties even though the plaintiff’s interpretation of the transaction be adopted.

Our conclusion is that the record shows no error. Judgment affirmed.

ELIAS HANSEN, EPHRAIM HANSON, and FOL-LAND, JJ., concur.