Ronning v. Way

Action for Conversion of Mortgaged Personal Property by Constable— Notice Before Sale — Pleading — Cause op Action Stated.—A complaint in an action by a mortgagee of personal property situated in Los Angeles county, and mortgaged by a resident of Biverside county, which alleges that it was recorded in Los Angeles county only, that defendant, who is a constable in a specified township in the latter county, converted said mortgaged property by levying upon and selling the same, without paying or tendering to plaintiff the amount of the debt due to plaintiff, the payment of which was secured by said mortgage, that the value of the mortgaged property so converted was the sum of $600; an£ that prior to the sale and conversion of said personal property the plaintiff informed defendant of the existence of said chattel mortgage, and the claim of the plaintiff thereunder, states a cause of action, and a general demurrer thereto was properly overruled.

Id.—Effect of Failure to Becord Chattel Mortgage in Mortgagor’s County—Qualified Invalidity—Pleading Bequired by Defendant.—The failure of the mortgagor to record the chattel mortgage in the county of his residence, as expressly required by section 2959 of the Civil Code, when taken in connection with section 2957 thereof, renders the chattel mortgage void “as against the creditors of the mortgagor, and subsequent encumbrancers of the property in good faith for value.” It is held that, as these enumerated classes do not appear to include the defendant, he is not in a position, without pleading the fact, to avail himself of the benefit thereof.

Id.—Construction of Code Provisions as to Chattel Mortgages— Modification of Former Provisions.—Although the chattel mortgage in question comprised personal property not specified in section 2955 of the Civil Code as subject thereto, and although the mortgagor failed to record it in the county of his residence, as provided in sections 2957 and 2959 of the same code, yet each of those sections is qualified by the later provisions of section 2973 of the Civil Code, adopted in 1905, providing that “mortgages of personal property other than that mentioned in section 2955, and mortgages not made in conformity with the provisions of this article, are nevertheless valid between the parties, their heirs and assigns, and personal representatives, and persons who, before parting with value, have actual notice thereof.”

Id.—Insufficient Defense to Action for Conversion—Levy and Sale-Against Vendee of Mortgagor—Bona Fide Purchase for Value not Alleged.—An alleged defense to the complaint, in the action for conversion, that the levy and sale by the constable defendant was against a vendee of the mortgagor, as the oiyner of the property mortgaged, which fails to aver that such vendee was a purchaser in good faith and for value, is insufficient. Under section 2957 of the Civil Code, to render the mortgage void as against such vendee, it must appear by allegation, proof and finding that the purchase was in good faith and for value, and in the absence thereof, the position of the vendee with reference to the property is identical with that of the vendor.