Kerley Chemical Corp. v. Colboch

BARNARD, P. J.

This appeal is presented on a settled statement, the facts being undisputed. On March 2, 1955, the plaintiff brought this action and on the same day attached a certain Piper aircraft on the theory that it was the property

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of the defendant. Thereafter, Tom C. Benson filed a third party claim alleging that he is the owner of a chattel mortgage on the airplane securing a note for $7,158, and asking for proper relief. A hearing to determine title was held, in accordance with section 689 of the Code of Civil Procedure, at which certain letters and certified copies of certain documents material to the matter were received as exhibits. After argument the matter was submitted, and the court entered an order finding that Benson’s third party claim is valid. The plaintiff has appealed from that order.

On February 9, 1955, Benson sold this airplane to Colboch and executed a bill of sale which recited that it was subject to a chattel mortgage, dated February 8, 1955, for $7,158 in favor of Benson. On February 9, Colboch executed a chattel mortgage on this airplane in favor of Benson for $7,158. On February 9, Benson’s attorneys mailed this bill of sale and chattel mortgage to the Civil Aeronautics Administration in Washington, D. C., with a letter stating that the certificate of registration should be returned to the new owner, and also stating “Please record the chattel mortgage as a lien against this air craft and return, if possible, the chattel mortgage so that it may be recorded in Pinal County, Arizona.” The bill of sale is stamped by the Civil Aeronautics Administration as received on February 14, 1955, and as recorded on February 18, 1955, at 9:56 a. m. The chattel mortgage is stamped as received on February 14, 1955; as received by “Admin. & Records Branch” on February 15, 1955, at 8:45 a. m.; again as received by Admin.

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Records Branch on March 4, 1955 at 2:41 p. m.; and as “recorded” on March 9, 1955, at 4 p. m. It was also recorded in Pinal County, Arizona on March 28, 1955.

The reason why this chattel mortgage was received by the Admin. & Records Branch of the Civil Aeronautics Administration on February 15 and again on March 4, is explained by a letter written by the chief of that branch to Benson’s attorneys dated February 23, 1955. This letter admits the receipt of “documents covering Piper air craft” and check for filing fees, and states that this aircraft was registered in the name of Colboch on February 18,1955, and certificate of registration forwarded to him on that date. The letter then goes on to reply to the request that the chattel mortgage itself be returned to the attorneys by stating that when the return of such a conveyance is desired a certified copy must accompany the original instrument; that “after recordation is