Winne v. Ford

California Court of Appeal Jan 12, 1928 No. Docket No. 5905.Published

Before: Cashin

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Holding. The court held that the defendant constable was liable for conversion because he failed to comply with the statutory requirements of Civil Code section 2969 regarding the tender of the mortgage debt or the provision of a valid indemnity bond before selling the mortgaged automobile. The court further determined that the mortgage created a valid lien on the vehicle despite registration issues under the Vehicle Act.

Issues

Whether the defendant complied with Civil Code section 2969 requirements for levying upon and selling mortgaged property.
Whether the mortgage created a valid lien on the automobile given the registration status under the Vehicle Act of 1919.
Whether the defendant could challenge the validity of the mortgage despite not being in privity with the owner.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The code section provides for a tender of the mortgage debt and interest or a deposit of the amount with the county clerk or treasurer payable to the order of the before the property is taken by the officer”

“It is our conclusion that the mortgage was a lien upon the property, and that the defendant, by failing to comply with the provisions of section 2969 of the Civil Code, became liable for its conversion”

CASHIN, J.

An action in conversion brought by the mortgagee of an automobile against a constable by whom the automobile was levied upon and sold under an execution.

The complaint, among other averments, alleged the execution of the mortgage by the owner of the car, one S. M. Eksoozian, and that the mortgage was unpaid; that the defendant failed to tender or deposit the amount of the mortgage debt, and that no verified statement or bond, as required by section 2969 of the Civil Code, was presented or furnished before the levy and sale. With the exceptions of the allegations of a failure to tender or deposit the amount of the debt the above allegations were denied, as were certain allegations of facts which the plaintiff contends should estop the defendant from asserting a want of title in the mortgagor.

[310]

The court found for the plaintiff, and from the judgment entered the defendant appeals.

As stated by the latter in his brief, the only grounds urged for a reversal of the judgment are that certain conclusions of the trial court are unsupported, namely, that there was a failure to comply with the provisions of the code section; that the mortgagor was the owner of the automobile; that the plaintiff acquired a lien thereon and that the facts alleged and found were sufficient to estop the defendant from asserting want of title in the mortgagor.

The code section provides for a tender of the mortgage debt and interest or a deposit of the amount with the county clerk or treasurer payable to the order of the before the property is taken by the officer, and it is not claimed that this requirement was met. It further provides that when an attachment or execution creditor to the officer a verified statement that the mortgage is void or invalid for reasons therein specified, and delivers to the officer a good and sufficient indemnity bond in double the value of the mortgaged property, which shall be made both to the officer and the mortgagee, indemnifying each of them for the taking of the property against loss, liability, damages, costs, and counsel fees, then the officer shall take the property and, in the case of an execution, sell it in the manner provided by law. Further provision is made for exceptions to the sufficiency of the sureties and their in the same manner as upon an undertaking on attachment.

Winne v. Ford

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CASHIN, J.

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