Kelley v. Cochran

CRAIG, J.

The defendants appealed from a judgment rendered by the Superior Court of Los Angeles County in favor of the plaintiff for the possession of personal property.

Said judgment is based upon allegations of the complaint and findings of fact reciting merely that the plaintiff was the mortgagee and entitled to the immediate possession of the property described, and that the defendants were at all times in possession thereof; that the plaintiff had demanded possession but that the defendants had refused to deliver the same. The appeal was taken upon the judgment-roll.

Upon the record as presented it appears that the respondent claimed the right to possession of the property simply because he was the holder of a chattel mortgage lien thereon. It is not asserted that the mortgagors were charge

[360]

able with a breach of the conditions of the mortgage, nor does it appear that the obligation supporting it was due, nor that the mortgage contained provisions for the possession by the mortgagee of the property prior to the maturity of the obligation. A mortgagee is not entitled to possession of mortgaged property in such a case. (Civ. Code, sec. 2927;

Bank of Woodland

v.

Duncan,

117 Cal. 412 [49 Pac. 414];

Flinn

v.

Ferry,

127 Cal. 648 [60 Pac. 434]

The judgment is reversed.

Works, P. J., and Thompson (Ira F.), J., concurred.