Dynan v. Gallinatti

NOURSE, P. J.

Edith Gallinatti, individually and as executrix of the will of her husband, Mack Gallinatti, appeals from the order denying her motion for a new trial; and from that portion of the judgment rendered in favor of plaintiffs, a copartnership engaged in the financing of loans, decreeing that certain sums of money are secured by a chattel mortgage upon decedent’s interest in the community property consisting of certain household furniture and furnishings.

The oral stipulation of facts upon which the case was tried is as follows:

Mack Gallinatti on June 19, 1946, made and delivered to respondents a promissory note and a chattel mortgage to secure the payment, the mortgage being upon the community household furniture and furnishings located in the family home. He signed his name and forged that of his wife to both the note and mortgage, having both signatures acknowledged before a notary public. Appellant did not give her consent to the signing of her name on either note or mortgage and had no knowledge of them.

Mack Gallinatti died on July 4, 1946. The chattel mortgage was recorded one day after his death. On July 29, 1946, Edith Gallinatti was appointed executrix of the will of her husband. Respondents duly presented and filed a claim against the estate which was rejected by the executrix as a secured claim but allowed as an unsecured claim. Thereupon respondents filed this action to foreclose the lien of the chattel mortgage on the community household furniture and furnishings. It is conceded that as the chattel mortgage was not recorded until after the death of her husband, appellant had no knowledge of its execution and no opportunity to set it aside during her husband’s lifetime.

Appellant contends that said chattel mortgage is void, basing this contention on section 172 of the Civil Code which

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states in part: “The husband has the management and control of the community personal property, with like absolute power of disposition . . . provided, however, that he cannot . . . sell, convey or encumber the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the wife or minor children that is community, without the written consent of the wife.” Appellant argues the language of the code is clear and unambiguous and therefore when Mack Gallinatti attempted to make a chattel mortgage covering the furniture and furnishings of the home without first securing the consent and signature of his wife his act was an idle act insofar as creating any lien. Appellant agrees that respondents have a valid claim against the estate for the money loaned but she denies that they have a lien on any portion of the household furniture.