Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-23


NOT otberise and if in any such
mortgage the manner in which the
same may be foreclosed shall not De
nroyided then upon breach OF the
conditions thereof, in case the con-
sideration Of such mortgage shall
not exceed the sum of $500, the same
NAV be foreclosed and the mortgaged
property sold by the sheriff or any
constable in the county in which SAID
mortgage has been filed, upon the
written request Of the mortgage
his agent, or attorney upon such no.
tice, and in the manenr provided by
law for the sale of personal properly
upon execution; and if the consider
alton of such mortgage shall exceed
the sum of $500, the same may be
foreclosed by an action at law IN the
circuit court of the county in which
such mortgage may have been filed. "
Sec. 7410 L. o. L. says Whenever
the condition Of any mortgage OF
goods and chattels shall be broken,
the mortgage shall be entitled to
the immediate possession of the
mortgaged property and when, after
breach of the condition Of any mort
gage the possession Of the mort
gagged property shall not be delivered
up to the mortgage upon demand by
him or by any person duly authorized
by him to make such demand Of the
person or persons having such mort
gagged property in possession, the
mortgage may recover the posses
sion of such mortgaged property in
the manner provided by Chapter II
of Title w of the code Of civil pro-
cedure." Chapter II Of Title " re-
lates to the recovery Of possession of
personal property, and provides that
during the tendency OF the action,
the property may be delivered to the
plaintiff upon writ commonly
known as the writ of replevin upon
his furnishing proper security
The early case of Jacobs V. Mccall
ly Or. 1914, holds that the parties
have a right to prescribe the manner
in which a foreclosure of a chattel
mortgage may be accomplished. If,
in that process as stipulated, 1t was
necessary for the possession Of the
mortgaged property to be delivered
to the mortgage, the mortgagor
must comply with that condition if
he would insist on it being fore
closed in the manner prescribed by
its own terms This court held there
"on his refusal to give up the prop
erty the mortgage might have
brought replevin against the mort
gagor which action the mortgagor
could have defended by showing that
the property had been in some man
ner released from the mortgage. The
court also held in that case that a
mortgagee was not driven to his ac-
ton by replevin brt could at once be-
gin his suit in equity to foreclose
the chattel mortgage. Under the
terms Of Sec. 741O L, o. L., above
quoted, 1t has been often held that
mortgage may maintain replevin for
the mortgaged property upon a
breach Of the conditions of the mort !
gage by the mortgagor. In the case
OF Reinstein V. Roberts, "a Or. 81. |
which has been followed in many
other cases since then, 1t was held
that a mortgagee might maintain re-
plevin In the usual form, alleging alb
solute ownership Of the property in
himself and prove that allegation by
the production of chattel mortgage
upon the property in question con-
pied with testimonial aliunde that
the mortgagor has committed a
breach OF the conditions Of the chat
tel mortgage. This doctrine is also
reiterated In the case OF Backhaus
Buells, 4S Or. 55S. After discussion
OF the authorities the court laid down
the rule as follows: "The right given
TO MORTGAGE Of chattels under
Sec 1886 B. & c. Comp, L. O.
I4lO' to recover the possession n,
mortgaged property after condition
broken Is Intended 70 enable him to
secure such possession for the mr.
pose of foreclosure only and unless
there is some debt ascertained or do
clared so that the foreclosure can ba
mad the remedy cannot be invoked
II the obligation is unllQuidated the
must resort to some an
Ia
proprlate judicial proceeding to en-
.orce his lien in which the amount Of
niS debt can be ascertained and tbe
''sn'S OF the parties be declared and
'hiorced.' In that case the contract
letween Backhaus, the buyer ana
iuells' the grower, was almost idon-
leal IN terms with the contract in
question here When the time for
,e'lvery arrived Buens refused 10 do
''eF the hops and Backhaus brougb,
us action OF replevln In the nsnor
orm claiming absolute ownership ot
ne property in himself He sacn,os