Pickle v. Smalley

Citations

• 21 Wash. 473
• 58 P. 581
• 1899 Wash. LEXIS 312

Syllabus

<p>CHATTEL MORTGAGES — FORECLOSURE BY NOTICE — AUTHORITY OF CONSTABLE.</p> <p>A constable has no authority to foreclose a chattel mortgage hy notice and sale, under the terms of Bal. Code, §§ 5871, 5872, which provide that such instruments may be foreclosed hy the service of the notice therein prescribed hy the “sheriff or other proper officer.”</p> <p>CONVERSION-SALE OF CHATTELS UNDER ILLEGAL FORECLOSURE OF MORTGAGE — EVIDENCE.</p> <p>In an action against a mortgagee and a constable for conversion, hy reason of the illegal seizure of mortgaged personalty in an attempt to foreclose by summary process, the chattel mortgage is not admissible in evidence to prove the mortgagor's indebtedness, for the purpose of thereby establishing a set-off; nor is it, in connection with the constable’s return in the foreclosure proceedings, admissible to show justification for the seizure and sale.</p> <p>SAME — DEFENSES-ANOTHER ACTION PENDING.</p> <p>Where, pending the disposition in the superior court of a foreclosure proceeding, which had been transferred there after the beginning of the summary method of foreclosure by notice and sale, the mortgagee and the constable, in whose hands the notice had been placed, proceed with the seizure and sale of the mortgaged property, they are guilty of conversion, and in an action therefor at the suit of the mortgagor they are not entitled to set up the defense of another action pending, involving the same parties and the same cause of action.</p>