Sinsheimer Bros. v. Kelshaw

KERRIGAN, J.

Judgment in this case went for defendant A. J. Sousa against-the plaintiff. Thereafter plaintiff’s motion for a new trial was denied, and from such order it now prosecutes this appeal.

In May, 1906, Frank G. Lucas, as security for the payment of a promissory note, gave to A. J. Souza a mortgage on his ■crop of beans, and at the same time his wife, Emilia Lucas, as further security for the same note, executed to Souza a chattel mortgage on certain horses, farming implements, and other personal property, being her separate property acquired from her former husband, then deceased.

In November, 1906, the plaintiff recovered a judgment against Frank G. Lucas, which was regularly entered and docketed. Disputing the validity of the crop mortgage held by Souza, it caused the sheriff to take the crop by virtue of a writ of attachment directed against the property of Lucas,

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whereupon Souza brought suit to foreclose said mortgage, under which action the beans were placed in the hands of defendant Kelshaw as receiver. In attaching the crop of beans the plaintiff did not pay or tender to the mortgagee the amount of the mortgage and interest, or deposit the amount thereof with the county clerk or treasurer, as provided by section 2969 of the Civil Code, and the trial court therefore found the attachment proceeding to be illegal. It also held that the chattel mortgage was made in good faith. Accordingly a decree was entered, directing that the beans be sold to satisfy the mortgage. This judgment was affirmed first by the district court of appeal, and subsequently by the supreme court.

(Sousa

v.

Lucas,

156 Cal. 460, [105 Pac. 413].) Within a month after the district court of appeal had decided the cause, and nearly ten months before the judgment therein was affirmed by the supreme court, to wit, on January 20, 1909, Lucas executed an assignment to Souza of all his interest in said crop of beans, the consideration being that Souza, would release the chattel mortgage on the personal property of Mrs. Lucas, and would look solely to the crop of beans for the satisfaction of Lucas’s indebtedness to him, and would also pay all costs and expenses growing out of the litigation concerning the chattel mortgage, whether covered by the judgment of foreclosure or not. Shortly thereafter and long prior to the time when the garnishment in the present case was levied, Souza gave the receiver notice of the assignment.