Lawler v. Solus

California Court of Appeal Jan 22, 1951 No. Civ. 7880Published

Before: Deirup

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Holding. The court affirmed the judgment in favor of the third-party claimant, holding that the mortgagee failed to meet the burden of proving he lacked notice of the claimant's prior title and that a motion for a new trial is not authorized in a section 689 proceeding.

Issues

Whether a mortgagee is protected against a prior owner's title when the mortgagee fails to prove he lacked notice of that title.
Whether a motion for a new trial is authorized in a third-party claim proceeding under section 689 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“One who takes a chattel mortgage is protected against prior equities only if he takes it for a valuable consideration and without notice.”

“A new trial is not authorized in a third party claim proceeding under section 689 of the Code of Civil Procedure.”

DEIRUP, J. pro tem.

On December 18, 1948, the defendant, T. A. Solus, executed to the plaintiff, H. Glenn Lawler, a mortgage of personal property, including 68 cows. Lawler foreclosed the mortgage and the Sheriff of Santa Clara County, acting under a writ, took possession of the personal property which Lawler claimed was covered by the mortgage.

[818]

The property so levied on included seven cows which were branded A0 on the right shoulder. Joe F. Soto served upon the sheriff a third party claim for these cows. Lawler filed a petition to determine title to them, pursuant to the provisions of section 689 of the Code of Civil Procedure. After a hearing a judgment was entered in favor of the claimant, Soto. A motion for a new trial was denied upon the ground that such a motion does not lie in a proceeding of this nature. Lawler has appealed upon the grounds that the trial court erred in entering the judgment in favor of Soto and also in denying the motion for a new trial.

It appears from the record that Soto acquired title to the cows in July, 1948, and that in September of that year, nearly three months before the mortgage was executed by Solus to Lawler, he left them on Solus’s ranch upon an oral agreement that Solus should feed and care for them and, as compensation, should have the milk and calves. This agreement was a “bailment or feeder agreement covering live stock” and, not being recorded, it was void as to the interest of Soto as owner and bailor against the chattel mortgage executed by Solus to Lawler if the seven cows were included in the mortgage and if Lawler was a bona fide encumbrancer. (Civ. Code, § 2980.)

One who takes a chattel mortgage is protected against prior equities only if he takes it for a valuable consideration and without notice. (Civ. Code, § 2957;

F. C. Silverthorn & Sons

Pacific F. Corp.,

133 Cal.App. 163 [23 P.2d 798].) Lawler took his mortgage for a valuable consideration but, upon title being shown to be in Soto, the burden was on him to prove that he did not have notice that the cows belonged to Soto.

(McLane

Lawler v. Solus

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