Summerville v. Kelliher

California Supreme Court Jul 19, 1904 No. Sac. No. 1054.Published

Before: Shaw

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Holding. The court held that a chattel mortgage on a crop is superior to a subsequent execution sale of the leasehold interest, and that a mortgagee's possession taken pursuant to the terms of the mortgage upon the mortgagor's default is lawful and does not extinguish the lien. Furthermore, the court affirmed that a party cannot claim the benefits of a lease while repudiating its obligations to pay rent.

Issues

Whether a chattel mortgage is rendered void by a fifteen-day delay in recording when no third-party prejudice occurred.
Whether a mortgagee's possession of a crop taken upon the mortgagor's default constitutes a waiver of the mortgage lien.
Whether the statute authorizing the striking of an answer for failure to provide a deposition is constitutional.
Whether a successor to a leasehold interest is bound by the lease's covenant to pay rent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The right of Kelliher, under this chattel mortgage, executed and recorded in October, was superior and paramount to that of Summerville under his subsequent execution and sale.”

“Under these circumstances his possession was not unlawful or tortious and did not extinguish his lien.”

“The law authorizing the court to strike out the answer of a party for a refusal to attend when required and give his deposition (Code Civ. Proc., sec. 1991) is unconstitutional, as tending unduly to restrict the right to defend an action.”

Synopsis

The facts are stated in the opinion of the court.

T. G. Elliott, D. E. Alexander, and J. B. Webster, for J. T. Summerville, Appellant.

C. H. Fairall, and H. R. McNoble, for W. G. Hersom, Appellant.

SHAW, J.

This is an action in claim and delivery for certain wheat and barley.

The defendant Hersom as trustee in bankruptcy of J. D. Stuart, the original owner of the grain, filed a cross-complaint against the other parties upon which issue was joined. The judgment was in favor of the defendant D. E. Kelliher. The plaintiff and Hersom each moved for a new trial, which was refused, and each, separately, has appealed from the order denying the motion for a new trial and from the judgment.

In many of its features the case is the same as

Summerville

[157]

Stockton Milling Co.,

142 Cal. 529. The plaintiff, as in that case, here claims the wheat as execution purchaser of the leasehold interest of Stuart under a judgment in favor of Watson against Stuart, the sale having been made on January 17, 1900. The defendant D. E. Kelliher claims one fourth of the grain as guardian of the lessor, Lobdell, who, after the lease was made, was adjudged insane, and he claims the other three fourths as mortgagee under a chattel mortgage of the crop to be grown on the leased land, executed by Stuaft on October 16, 1899, and recorded October 31, 1899, to secure a note of $3,000 from Stuart to Kelliher of the same date as the mortgage, and other advances to be thereafter made. Stuart was, upon his own petition, adjudged a bankrupt on January 25, 1900, and on February 14, 1900, Hersom was appointed his trustee in bankruptcy. He claims the property as a part of the estate of the bankrupt, Stuart.

1. The judgment of Watson was not a lien on the leasehold interest of Stuart, and, there being no levy of the execution, the plaintiff’s right takes its inception from the time of the sale, or from the giving of the notice thereof. This was expressly held in

Summerville

Stockton Milling Co.,

142 Cal. 529. We adhere to what was said in that case on this and all other points involving the same transactions and questions as those here under consideration. It will be necessary to consider some points which were not presented in the former case.

Summerville v. Kelliher

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Synopsis

SHAW, J.

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