Montana Attorney General Opinion 15-555

Opinion No. 555 l\lot1:gages-Chattel l\IOl1:gages-Fore- closure-Shet·iff-Replevin. HEI,D: Section 8286, H. C. ~L, 1921, permits power to be given the sheriff in a chattel mortgage, to sell mort- gaged personal property, But where the mortgagor is in aetua I possession and refuses to deliver the possession of the chattel the sheriff may not take same by force, In such case the mort- gagor 01' the sheriff should proceed by reple\·in. OPI~IO~S OF THE ATTORXEY GE~ERAL 385 June 18, 1934. You ask for information as to YOUI' a uthority in connection with ch~ttel mortgage sales, and an interpretation of Section 8286 Re"ised Codes, as to such authority. This section provides in part: "It is lawful for the mort- gagor of personal property to insert in his mortgage a clause authorizing thc sheriff of the county in which saW property, or any part thereof, may be. to execute the power of sale thereill granted to the mortgagee, his legal rep- resentative and assigns, in which case the sheriff of such county, at the time of default, at the request of the mort- gagee, must, and it is hereby made his duty to advertise and sell the whole or any part of the mortgaged prop- erty, wherever it may be, in the manner provided in such mortgage; * * *." Provisions in chattel mortgages which authorize the mortgagee, or his agents, to sell propert.y on default, are common and authorized by the laws of many states. The authorit~' of a mortgagee does not include a right to use force or violence in foreclosing his mortgage and this limitation has been expressed as follows by the Supreme COUl't of South Carolina: "The right to seize carries with it br necessary implication the right to do whatever is reasonahly necessar~' to make the seizure, including the right to peaceably enter upon the premises of the mortgagor. There is one re- striction, however, which the law im- poses upon this right. It must he exercised without provoking a hreach of the peace; and, if the mort;.:agee finds that he cannot ;.:et possession without committing a breach of the peace, he must stay his hand, and re- sort to the law, for the preservation of the public peace is of more impor- tance to society than the right of the owner of a chattel to get possession of it." (Willis v. Whittle, et aI., 64 S. J<J. 410.) See also: 57 A. L. H.. 26, note; 11 C. J. 560; Baer v. Colonial l!'inance Co., 182 N. E. 521. Your Question includes a determina- tion of what greater rights you may have as sheriff in connection with such foreclosure sales than exists in the mortgagee or his agent. Undoubtedlr a sale made by a sheriff is conducted in his official capacity. (Vose v. Whit- ney, 7 :\Iont. 385). Also undoul>tedly a sheriff has a right to go upon the premises of the mortgagor and remo,'e the property and may not be inter- fered with by third persons. Also the return of the sheriff on such foreclos- Ul'es is gh'en certain e"idential vallIP under the statute. (Section 8288, R. C. M. 1921.) A sheriff "ith a certified copy of a chattel mortgage and instnlCtions to foreclose, has not the same authority as with a writ of replevin or attach- ment, which constitute court orders. 'Where a mortgagor is in actual pos- session of property and refuses to dc- liver same unless it is taken bv force or violence, a very serious q·uestion exists as to your authority. In that re- gard T cannot find that this statute nor one similar to it has been con- strued. As statutes which give the mortgagee the right to sell are not construed to g-ive him of the right to take property by force, I would conclude that a similar statute which places the duty upon a sheriff to sell does not author- ize him to take same by force and that under those circumstances the mort- gagee or sheriff should proceed by replevin.