
    [No. 3642.
    Decided February 19, 1901.]
    Bancroft-Whitney Company, Appellant, v. Richard Gowan, Respondent, S. B. Folger, Appellant.
    
    CLAIM AND DELIVERY-BOND-JUDGMENT AGAINST SURETY.
    Where judgment is entered in favor of defendant in an action of claim and delivery, it is error to include therein judgment against a surety upon the bond given hy plaintiff for the purpose of obtaining possession of the goods at the commencement of the action.
    CHATTEL MORTGAGE — ’ DEFAULT ACTION FOE POSSESSION OF GOODS.
    Where a chattel mortgage gives the mortgagee the right, in case of default in payment, to take possession of the goods and retain them, such right of possession may he enforced hy an action of claim and delivery.
    Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.
    [Reversed.
    
      Mitchell Gilliam, for appellants:
    Claim and delivery under our statute is purely a possessory action, and right of possession is all that is required. Lazard, v. Wheeler, 22 Cal. 142. A lien created by a chattel mortgage, and giving the mortgagee right of possession upon default in the conditions- of the mortgage, is sufficient to sustain an action of claim and delivery. Jones v. Annis, 28 Pac. 156; J. I. Case Threshing Machine Co. v. Campbell, 13 Pac. 324; Cobbey, [Replevin, §§ 172, 173; Cobbey, Chattel Mortgages, § 482; Jones, Chattel Mortgages, § 706.
    
      Richard Gowan, for respondent.
   The opinion of the court was delivered by

Dunbar, J.

This action was brought by the plaintiff for the purpose of recovering from the defendant (respondent) possession of a lot of law books described in tbe complaint. At tbe time of tbe commencement of tbe action an affidavit and bond in claim and delivery were lodged with the sheriff, and the property taken from the respondent and delivered to the plaintiff. The action was founded upon a written instrument executed and delivered by the respondent to the plaintiff, of which the essential part is as follows:

“State of Washington, county of Kittitas.
“Know all men by these presents: That I have purchased from Bancroft-Whitney Go., of San Francisco, Cal, the following named books [describing the books], for which I am to pay the Bancroft-Whitney Co. the sum of three hundred ninety-eight dollars as evidenced by four notes, viz: [setting forth the notes] ; and the title and property in said books is to remain in the said Bancroft-Whitney Co. until said books are paid for. In case I do not pay for the same at maturity, the said Bancroft-Whitney Co. may take possession of said books and retain the same, or may sell them, without taking possession of them, and retain whatever was due thereon, and turn over the balance to me; Provided, That the said Bancroft-Whitney Co. may perform any power herein conferred on them by agent or attorney. [Signed.] Richard Gowan.”

The complaint made the usual allegations based upon the contract, and the respondent answered, making-a general denial, with the exception of two or three counts in the complaint, but did not allege in said answer that the instrument was intended or agreed to be a chattel mortgage. Afterwards respondent obtained leave to file an amended answer, which contained an affirmative defense to the effect that, at the time of the execution of the instrument, it was mutually understood and intended that it should serve as a chattel mortgage on the property therein described. This affirmative allegation of the answer was denied by reply.

At the commencement of the trial the plaintiff tendered to the respondent the notes mentioned in the instrument under consideration. At the time of the execution of the instrument the books in controversy were at Ellensburg, in Kittitas county, but before the commencement of the action they were brought by the respondent to Seattle, in King county, without permission of appellant to remove them. Upon the trial of the cause verdict was rendered in favor of the respondent, and judgment was subsequently entered, not only against the plaintiff, but against S. B. Eolger, surety on the claim bond, and the entering of such judgment against Eolger is one of the errors assigned in this case. Eor this error the judgment will have to be reversed. Edison v. Woolery, 10 Wash. 225 (38 Pac. 1025). This error is, however, admitted by respondent, and he asks that the judgment be modified to the extent that Folger be acquitted from the judgment, but that it remain in force against the plaintiff. But, as we view the law on the other propositions involved, the modification asked for would be of no avail.

The question of whether the contract was a chattel mortgage, under the affirmative allegations of the answer, was submitted to the jury under the following instructions :

“1. The object of a chattel mortgage is to give security either for an antecedent indebtedness or an indebtedness accruing at the time of the execution of the instrument. A mortgage gives to the mortgagee no title to mortgaged property. It only creates a lien, which can .only be enforced by a suit in a court of competent jurisdiction, or by notice and sale in the manner prescribed by statute.
“2. If you find from the evidence that 'the instrument in evidence was given as security for a debt previously existing, then its effect would be that of a chattel mortgage, and your verdict should be for the defendant.
“3. A mortgage gives to the mortgagee no title to the property. The rule used to be different. The mortgagee having no title to the property, an action of this kind cannot be sustained if the instrument was intended to be a mortgage.”

These instructions are assigned as error. It was the view of the court, and it is contended by the respondent, that, under the rule announced by this court in Silsby v. Aldridge, 1 Wash. 117 (23 Pac. 836); Kerron v. North Pacific L. & M. Co., 1 Wash. 241 (24 Pac. 445), and McClellan v. Gaston, 18 Wash. 472 (51 Pac. 1062), conceding the instrument to be. a chattel mortgage, the mortgagee had no title to the property, and action of replevin would not lie to obtain possession of the same; that in this state the chattel mortgage is only a lien, and. title can be acquired only by foreclosure and sale under the statutory procedure by notice and sale. In the cases cited by respondent and relied upon by him the question here was not involved. We held in Silsby v. Aldridge, supra, that the chattel mortgage, which was the ordinary chattel mortgage, did not convey to the holders any title to the property in question; that, under the Code, the possession of the property could be obtained only in the manner pointed out. But there was no question there as to whether the instrument was a mortgage or whether it had actually conferred title and power to take possession. In Kerron v. North Pacific L. & M. Co., supra, the instrument which was under construction was in its form the ordinary chattel mortgage, and the cause was reversed on the doctrine announced in Silsby v. Aldridge, supra. In McClellan v. Gaston, supra, it was held that a provision in a chattel mortgage, authorizing the mortgagee, in case of default or insecurity of the debt, to take possession of the mortgaged property, using all necessary force to do so, did not warrant the mortgagee or the sheriff in taking possession thereof over the objection of the mortgagor, but that, in the absence of the mortgagor’s consent, the contract could he enforced only by due process of law. This was upon the express ground that the mortgagee had no right to commit a breach of the peace to obtain his contract rights. But, whatever may he the conclusion reached by the courts in relation to the right of the mortgagee to bring an action for possession where there is no provision in the instrument empowering the mortgagee to take possession on default of payment, in this case express authority is granted by the provisions of the instrument itself. Neither did the plaintiff, as in the case of McClellan v. Gaston, supra, undertake to enforce its remedy outside of the law, hut it has brought itself within the terms of the contract, and the contract is not susceptible of construction. Its terms are too definite, direct, and plain to he varied by oral testimony. It provides that the Bancroft-Whitney Company may take possession of said hooks and retain the same, or may sell them without taking possession of them. With this right plainly and unequivocally guaranteed to the company by the contract, it was warranted in bringing the action in the form in which it did bring it, for the purpose of obtaining possession of the property. With this view of this proposition, it becomes unnecessary to review the other errors alleged.

The judgment is reversed.

Beavis, O. I., and Buelebtoe and Aedebs, JJ., concur.  