CZAPAR et ux.
GINTER et ux.
[76 Ariz. 85] Martin S. Rogers, Tucson, for appellants.
Udall & Udall, Tucson, for appellees.
LA PRADE, Justice.
This case present an appeal from a judgment dismissing plaintiffs' complaint in replevin wherein it was sought to recover
possession of certain personal property alleged to be in the possession of defendants and by them unlawfully detained, and allegedly worth $7,500 and damages for its unlawful detention.
Defendants denied the allegation of possession and unlawful detention and claimed that by virtue of a foreclosure sale of the chattels, of which plaintiffs had notice, that plaintiffs were guilty of laches, thereby waiving the right to attack the title of defendants. Defendants by counterclaim asked that the title to the chattels enumerated in plaintiffs' first cause of action be quieted in them. The action was tried and defended on the theory that defendants had secured title by virtue of the foreclosure sale, and were lawfully entitled to possession. For the first time on appeal they [76 Ariz. 86] claim that there is a want of proper parties in that the bill of sale given at the foreclosure sale of the chattels went to F. L. Ginter (father of defendant R. Y. Ginter), and not to defendants. After judgment on the realty mortgage (infra) was entered defendants took charge of the real estate and all the personal property, rented the store buildings and store fixtures, and collected the rents. This pretended defense comes too late.
Stripping a long and tedious factual situation to bare essentials it appears that plaintiffs (appellants here) mortgaged two separate pieces of real estate (St. Mary's Market and Del Mar Market) to defendants' assignor, securing an indebtedness evidenced by a promissory note in the principal sum of $13,500, calling for monthly payments. Upon default of payment, defendants, as owners and holders of the note and mortgage, brought suit to foreclose the realty mortgage. Judgment in the realty foreclosure action was entered for $11,500 principal then due, plus interest to date of judgment, plus $600 attorney fees, plus costs in the sum of $23.80, together with interest on the whole thereof at 8% until paid, and it was decreed that the whole of said sums and interest constituted a lien on the real estate. The judgment further directed a foreclosure and that special execution issue directing the Sheriff to seize and sell and apply the proceeds realized on the sale to the 'satisfaction of plaintiffs' judgment, together with interest, costs and accruing costs * * *'. (Emphasis supplied.) The note was further secured by a chattel mortgage executed and delivered simultaneously with the realty mortgage. This replevin suit has its origin in the chattel mortgage, as will more specifically appear later.
It should be noted here that there was no specific judgment for accruing costs. Counsel for defendants claim otherwise in that inferentially at least that was a judgment for accruing costs, to be inferred from the language of the judgment directing the disposition of the funds to be obtained on a sale.
At the sale defendants bid $12,562.69, the total then due on the judgment and including the sum of $30.20 costs 'expenses of the sale'. The Sheriff, in his return of sale, reported that the proceeds of sale satisfied the judgment in full 'save and except for accruing costs'. The clerk of the court, on receipt of the Sheriff's return, entered same on the judgment docket. An abstract of the judgment docket lists all the items of the judgment and recited the judgment was 'Satisfied in full by sale under execution, except accruing costs * * *'.
After the time for a redemption had expired, defendants demanded of the Sheriff that he execute and deliver Sheriff's deed, which he did. Defendants' counsel testified that in this behalf he expended, in defendants' behalf, the total sum of $58.63 for such items as revenue stamps affixed to Sheriff's deed, Sheriff's fee for deed, recorder's[76 Ariz. 87] fee for recording deed, notice of sale, Sheriff's return on foreclosure, Sheriff's certificate of sale and Sheriff's fee of $2 for posting notice of sale.
Defendants, after receiving the Sheriff's deed, did not file in the realty foreclosure suit, any statement of costs that had accrued subsequent to the sale or statement of taxes paid or any statement indicating that there existed any deficiency.
Defendants, in order to reimburse themselves for this item of $58.63, and after the redemptionary period had expired and after issuance of Sheriff's deed, purportedly proceeded
to foreclose the chattel mortgage by notice and sale, as provided for in Section 62-527, A.C.A.1939. A sale was conducted, at which sale the property described in the chattel mortgage was knocked off to one F. L. Ginter for the sum of $25. F. L. Ginter was the named payee in the note and the mortgagee in the mortgage, both of which had been assigned to defendants (his son and daughter-in-law). The property covered by the chattel mortgage was located in the property known as the St. Mary's Market, in which there was also other personal property belonging to the plaintiffs which was not included in the chattel mortgage. At the Del Mar Market there was more personal property of plaintiffs (store fixtures, refrigerators, scales, cash register, etc.), none of which had been mortgaged to defendants. Nevertheless, by virtue of the pretended sale on foreclosure of the chattel mortgage, defendants sought to retain possession of all of the chattels. There was and is no semblance of a legal defense to the replevin action for the personal property that was never included in the chattel mortgage.
The factual situation here discloses that there was one debt evidenced by a promissory note and secured by a realty mortgage and a chattel mortgage. Suit on the note and to foreclose the realty mortgage resulted in a judgment extinguishing the debt, as ...