Appellant brought an action in claim and delivery to recover from respondent 176 head of cattle which were included in a chattel mortgage held by appellant. The cause was tried to a jury, and after appellant had rested respondent moved for a nonsuit, which was granted. From the judgment of dismissal entered against appellant this appeal has been taken, it being assigned that, the court erred in sustaining the motion for nonsuit and in rendering the judgment of dismissal.
In its complaint appellant alleged that one H.E. King had executed to it a chattel mortgage on some 700 head of cattle; that respondent had taken possession of and was detaining 176 head of steers covered by skid mortgage; that demand had been made upon respondent to turn over the possession of said animals to appellant, but that respondent *Page 44 withheld said property from appellant. The complaint then prayed for judgment for recovery of said personal property from respondent or the value thereof. Issue was formed by way of answer made to this complaint by respondent. Thereafter a supplemental complaint was filed by appellant in which it was alleged that since the commencement of the action the chattel mortgage above mentioned had become due and appellant had foreclosed the same by notice and sale but that such foreclosure and sale did not include the 176 head of steers in respondent's possession; that after said foreclosure and sale there still remained due on the mortgage indebtedness a deficiency of $11,618.14 for which sum the mortgagor had authorized the entry of judgment against him; and that said judgment had not been paid. Demand is then made for judgment as prayed for in the original complaint. Objections were made to the filing of this supplemental complaint which were overruled, and it was stipulated that an answer thereto might be dictated into the record, whereupon counsel for respondent stated that the nature of such answer would be an admission of the truth of the supplemental complaint, with the allegation that the entry of the judgment against the mortgagor constituted a waiver of appellant's lien against the mortgaged property, and the cause was tried upon such issues.
C. S., sec. 6949, provides in part that: "There can be but one action for the recovery of any debt or the enforcement of any right secured by a mortgage upon real or personal property . . . .
The above provision of the statute has long been the law in this state, and in, the early case of Cederholm v. Loofborrow, Ida. 191, 9 P. 641, this section was construed, and after quoting the section, said:
"It is evident the legislature intended to do away with a multiplicity of actions, as they have fully provided for the protection of rights in one suit; and where the plaintiff, as in his case, chose to enforce his rights by foreclosure, that action becomes exclusive. (Eastman v. Turman, 24 Cal. 382.) *Page 45
"The plaintiff's remedy in the first suit was full and complete. He was not only entitled to have a foreclosure of the equity of redemption and a sale of the chattels, but, also, to have the property fully protected from conversion or destruction until the same should be sold. (Freeman v. Freeman,17 N.J. Eq. 44; 3 Wait's Actions and Defenses, 423.) If plaintiff failed to ask for sufficient relief in his foreclosure proceedings, that is a fault of which he cannot complain. We are aware that it has been held in many states that the two actions could be maintained, but we think they did not have such statutory provisions as are found in this territory. (Jones on Chattel Mortgages, sec. 758, and cases there cited.)"
The facts of the above case are similar to the one at bar, although it appears that there the foreclosure action included the property sought to be recovered by an action in claim and delivery. If appellant in the instant case had included in its foreclosure action the 176 head of steers in possession of respondent which were covered by its mortgage, the question as to the waiver of its mortgage lien could not have arisen, but having failed to do so, we think it cannot now contend in the face of the statute, which is plain and unambiguous, afortiori, in view of the decisions construing it, which construction is in harmony with that generally given to this statute, that more than the one action can be maintained for the of collection of a secured by its chattel mortgage. (Cederholm v. Loofbarrow supra; First Nat. Bank v. Williams,2 Idaho 670, 23 P. 552; Rein v. Callaway, 7 Idaho 634,65 P. 63; Clark v. Paddlock, 24 Idaho 142, 132 P. 795, 46 L.R.A., N. S., 475; Dighton v. First Exch. Nat. Bank, 33 Idaho 273,192 P. 832.)
In Ould v. Stoddard, 54 Cal. 613, wherein that court construed sec. 726 of the Code of Civil Procedure which is the same as our statute, it is said:
"It is not difficult to discover the policy which dictated the enactment of this statute. The tendency of modern legislation is to prevent multiplicity of suits, and no one doubts the wisdom of it. In order to give to this statute the force *Page 46 and effect which the legislature intended that it should have we must hold that, by prosecuting an action upon the note secured by the mortgage to final judgment, the plaintiff has exhausted his remedy upon both the note and the security. To hold otherwise would be to hold that there may be two actions, where the statute declares there can be but one."
Appellant argues that even though the mortgagor, King, might have objected to the foreclosure of the mortgaged property not withheld from appellant by respondent, he waived his right to do so, and therefore respondent cannot now complain for him. But appellant has exhausted its cause of action under the mortgage by foreclosing the same against that part of the mortgaged property that was voluntarily delivered and has taken a deficiency judgment against the mortgagor for the amount remaining after the sale and the application of the proceeds derived from such sale of a part of the mortgaged property upon the mortgage indebtedness. This being an action in claim and delivery, appellant must recover upon the strength of its own title and not upon the weakness of respondent's title. (Mountain Home Sheep Co. v. Faraday Weaver, 36 Idaho 633,212 P. 970.)
Appellant having exhausted its remedy under its mortgage, the judgment of the district court should be affirmed, and it is so ordered. Respondent to recover costs.
McCarthy, C.J., and Wm. E. Lee, J., concur. *Page 47