Rein v. Callaway
Idaho Supreme Court
APPEAL from District Court, Elmore County. In tbe case of Brown v. Bryan, 5 Idaho, 145, 51 Pae. 995, this court after full hearing decided that a power of sale in a mortgage cannot be exercised but that the mortgage must be foreclosed as provided by law. This decision is as applicable to chattel as to realty mortgages. A mortgagee cannot waive his -security and sue upon the debt. (First Nat.
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APPEAL from District Court, Elmore County. In tbe case of Brown v. Bryan, 5 Idaho, 145, 51 Pae. 995, this court after full hearing decided that a power of sale in a mortgage cannot be exercised but that the mortgage must be foreclosed as provided by law. This decision is as applicable to chattel as to realty mortgages. A mortgagee cannot waive his -security and sue upon the debt. (First Nat. Bank of Lewis-ton v. Williams, 2 Idaho, 670, 23 Pac. 552; Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. 1086.) The relation between the mortgagee and the mortgagor is a peculiar one in those states, like…
1Opinion of the CourtSullivan, J.
This action was brought to recover a deficiency alleged to be due after applying the proceeds of a sale of mortgaged chattel property in part payment of the debt secured by such mortgage. Among other facts, the complaint alleges: On April 20, 1895, the defendant, Callaway, being indebted to the plaintiff in the sum of $1,700, executed and delivered to him his promissory note for that sum, and, to secure payment of the same, gave a chattel mortgage upon thirty-three *637sacks of wool. This mortgage contained the following provision: “It is hereby specifically agreed and understood that at any time…
Also in this document: Concurrence.
2Cases cited5 opinions
- Biddel v. BrizzolaraCalifornia Supreme Court · 1883
- Barbieri v. RamelliCalifornia Supreme Court · 1890
- Brown v. WillisCalifornia Supreme Court · 1885
- First National Bank of Lewiston v. WilliamsIdaho Supreme Court · 1890
- Porter v. MullerCalifornia Supreme Court · 1884
3Cited by29 opinions
- Clark v. PaddockIdaho Supreme Court · 1913
- Barth v. ElyMontana Supreme Court · 1929
- First Nat. Bank of Pocatello v. PolingIdaho Supreme Court · 1926
- Keever v. Nicholas Beers Co.Nevada Supreme Court · 1980
- Forbush v. San Diego Fruit & Produce Co.Idaho Supreme Court · 1928
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