Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-10

case was filed on March 16, 1910,
and within the time allowed.
This cause was tried in the lower
court upon the same testimony as
that introduced in suit between the
same parties to foreclose a chattel
mortgage upon the same property,
and apparently on account of the
transcripts in the two cases of the
same name being filed at the same
time some delay was caIsed in the
payment of fees. This has been cor
rected. The motion to dismiss,
therefore, will be denied, and it is so
ordered.
On the Merits.
This Is an action for the possess
sion of personal property. The
cause was tried by the court without
the Intervention of a jury, resulting
in findings and judgment for plain
tiff, and defendant appeals.
The complaint alleges, in sub
stance, that the defendant, being the
owner Of one seven-passenger S0-6O
H. p, Stearns touring car, No. 1116,
valued at 50 500, which he purchased
from the Grove Automobile COM
pany at Portland, Oregon, on May 81,
1909, for valued received executed to
plaintiff chattel mortgage on said
automobile, to secure the payment of
note of $4,000 due in 80 days from
that date at eight per cent per an
mum, and reasonable attorneys fees.
That the chattel mortgage was duly
recorded in Multnomah county,
state of Oregon, and is valid and
existing chattel mortgage upon said
property, and that said sum is due
and unpaid. That on the day of the
commencement of this action, and
prior thereto, plaintiff demanded
payment of the note, and upon de-
fendants failure to make such pay
ment plaintiff demanded possession
of the property, delivery of which de-
fendant refused, unlawfully with
holding the chattels from plaintiffs
possession.
Defendant, by his answer, admits
the execution of the note and mort
gage upon the automobile to secure
payment of $4,000, with interest; ad-
mits plaintiff demanded payment of
the note, and his refusal to pay also
the demand for the possession of
said property and his refusal to de-
liver the same. Further pleads that |
the note and mortgage were given |
solely for the purpose of indemnify
ing plaintiff on account of his sign
ing a note of $500, dated May 21,
1909, for L. E. Templeton, and that
there is a suit pending in the same
court to foreclose said mortgage
The reply put in issue the new mat
.er of the answer.
Bean, j.: The record in this cause
contains no bill of exceptions. The
)nly question to be determined,
therefore, is whether or not there is
my error of record. This court will
lot review the findings of fact of the
over court State v. Drake, II Or,
1916; Page " Smith, 13 Or, 41O; Miles
7. Swanson, AZ Or, 213. 1t is claimed
~ defendant that the complaint, in
ailing to allege that the plaintiff
vas entitled to the immediate pos
session of the personal property, does
lot state facts sufficient to consti-
ute a cause of action, and that the
'ase comes within the rule laid down
n Kimball " Redfield, 33 Or, 292.
From an examination of the COM
'laint 1t will be observed that the
of the chattel mortgage
ipon the property in question is al
eyed, and that the conditions of
such mortgage have been broken.
Che statute provides that, whenever
he condition of any mortgage of
goods and chattels shall be broken,
he mortgage shall be entitled to
he immediate possession of the
nortgaged property, and when after
preach of the condition of any such
mortgage the possession of the mort
gagged property shall not be delivered
Up to the mortgage upon demand by
him, the mortgagee may re-
cover the possession of such mort
gagged property in the manner pro-
'ided by Chap. II of Title Nv of the
code of civil procedure" Sec. 7410,
L. o. L. When the conditions of a
,hattel mortgage have been broken,
he lien thereof is converted into a
qualified ownership in the mortgage,
him, under the above sec
ion of the statute, to the possession