Teague v. Maddox

Statement by Mr. Justice BREWER.

This case comes from the supreme court of the territory of Montana, and presents the following facts: William Rader, one of the defendants in the case as commenced in the district court of that territory, was sheriff of Meagher county, Mont., and the other defendants were his bondsmen. Maddox and Gaddis were the owners, respectively, of two notes, given by P. D. Kinyon, and secured by a chattel mortgage on some 400 horses. At that time there was in force in Montana the following statutory provision:

'It shall be lawful for the mortgagor of goods, chattels, or personal property to insert in his mortgage a clause authorizing the sheriff of the county in which such property or any part thereof may be, to execute the power of sale therein granted to the mortgagee, his legal representatives and assigns, in which case the sheriff of such county, at the time of such sale, may advertise and sell the mortgaged property in the manner prescribed in such mortgage.' Comp. St. Mont. § 1550.

This mortgage contained the clause referred to in the statute. On the maturity of these notes, and on the 9th day of August, 1887, one N. B. Smith, an attorney at law, as attorney for Maddox, placed in the hands of Sheriff Rader this mortgage, indorsed as follows:

'You are hereby authorized to execute the power of sale contained in certain chattel mortgage, of which the within is a true copy. Fletcher Maddox & William Gaddis. By N. B. Smith, their Agent and Attorney.'

Rader collected the horses, and advertised them for sale. At the day of the sale a party by the name of A. B. Kier was a bidder, and after some horses had been knocked down to him, Rader no money having been paid-refused to receive any further bids. Thereupon Kier represented that he had in the bank $1,752; agreed to turn that money over to the sheriff, and leave with him all horses that should be knocked down to him; and, further, that if in five days he should not complete the payment, both money and horses should be forfeited. Neither Maddox nor Gaddis were present, but Smith, their attorney, was. The matter was referred to Smith, and he directed the sheriff to continue the sale, and receive the bids of Kier. Horses to the amount of $8,096.50 were struck off to Kier. The $1,752 was deposited with the sheriff, and the horses were left with him. Kier failed to complete his purchase by the payment of the balance of the money. After the five days had expired, the sheriff tendered the $1,752 and horses to Smith, for Maddox and Gaddis, but Smith declined to receive either. Thereafter Maddox and Gaddis took the money, but declined to receive the horses. The sheriff received no other instructions, and, after holding the horses for about a month, turned them over to his bondsmen, and Maddox and Gaddis, one as plaintiff and the other as intervener, brought this suit to recover the difference between $1,752 and $8,096.50. They obtained judgment in the district court, which judgment was affirmed by the supreme court, 9 Mont. 126, 22 Pac. Rep. 386. From that judgment the sheriff and his sureties have brought the case here by both writ of error and appeal.

A. H. Garland and H. J. May, for plaintiffs in error.

Fletcher Maddox, M. F. Morris, and James Hoban, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.