Pacific States Savings & Loan Co. v. Hoffman

California Court of Appeal Oct 11, 1933 No. Docket No. 8054.Published

Before: Craig

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Holding. The court held that a chattel mortgage is valid despite the absence of the mortgagee's signature on the affidavit of good faith and that the property description was sufficiently certain to identify the encumbered personalty.

Issues

Whether a chattel mortgage is invalid due to the absence of the mortgagee's signature on the affidavit of good faith.
Whether the description of the personal property in the mortgage was too uncertain to be valid.
Whether proof of insolvency is required to support the appointment of a receiver.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“In the absence of a statute or rule of court requiring it, the affiant’s signature to an otherwise regular affidavit is not necessary.”

“It has been held that a description is sufficient if it is such as to enable third parties or inquirers to identify the property covered by it.”

“since the statutes do not require proof of insolvency in such a case, it may not for that reason be set aside.”

CRAIG, Acting P. J.

This case and that of

Pacific States Savings & Loan Co.

Hoffman,

Civil No. 8050, this day decided

(ante,

p. 601 [25 Pac. (2d) 1006]), were instituted, tried and appealed at the same time by the same parties and questions argued in both need not be here restated. The former related to the real property, and the latter to personalty consisting of the furniture and furnishings contained therein, of all of which the appellant was in possession.

The first ground of appeal herein concerns the validity of the chattel mortgage by which said personal property was encumbered. In an instance cited by the appellant it was indicated that a chattel mortgage, bearing no affidavit of good faith, was invalid as to a purchaser without notice. However, it does not here appear that the affidavit was omitted nor that the appellant purchased without notice. It does appear that the same was signed by both encumbrancers, but that the signature of the mortgagee was not appended thereto; but the certificate of the notary public recited that all of the parties including the mortgagee “each

[606]

for himself both depose and say: That the afore-mentioned mortgage is made in good faith and without any design to hinder, delay or defraud any creditor or creditors”. “ In the absence of a statute or rule of court requiring it, the affiant’s signature to an otherwise regular affidavit is not necessary.”

(City of Petaluma

White,

152 Cal. 190 [92 Pac. 177] ;

A. P. Hotaling & Co.

Brogan,

12 Cal. App. 500 [107 Pac. 711] ;

Fairbanks, Morse & Co.

Pacific States Savings & Loan Co. v. Hoffman

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