Kern Valley Bank v. Koehn

SHAW, J.

This is an appeal from an order refusing to dissolve an attachment.

The writ of attachment attacked was issued on October 2, 1907, in pursuance of an affidavit and undertaking filed on the same day. The action was begun on July 17, 1907, to recover of defendant the amount of a note for $5320, dated October 2, 1900, and maturing October 2, 1903.

The first ground of the motion to dissolve the attachment was that the debt sued on was secured by a lien and pledge of personal property. Affidavits and counter affidavits were filed upon the hearing. They were conflicting upon some points. We must necessarily accept the view most favorable to the plaintiff, being bound to that extent by the decision of the court below. The debt was originally created on May 2, 1898, and was evidenced by a note of that date which became due eight months after its date, which would be January 2, 1899. On August 5, 1898, defendant executed to plaintiff a contract purporting to be a grant, bargain, and sale of an undivided one-half interest in a quartz-mill and appurtenances with the right to use the millsite, adjacent ground, and water to operate the same. This was given and accepted, not as an absolute conveyance, but as security for the payment of said note of May 2, 1898, in effect a mortgage. Plaintiff did not take possession of the mill under this mortgage. This note was not paid And the note sued on was given in renewal thereof. Although dated October 2, 1900, the latter note was not in fact executed until March 24, 1903. At that time the original debt and note falling due January 2, 1899, was barred by the statute of limitations. The conveyance of the quartz-mill, although absolute in form, was, in effect, only a mortgage and when the debt which it secured became barred the mortgage

[239]

ceased to be effective and the lien which it had created was extinguished. (Civ. Code, sec. 2911.) The subsequent renewal of the note on March 24, 1903, created the debt anew, but it did not renew, revive, nor continue the mortgage.

(Sanford

v.

Bergin,

156 Cal. 43, [103 Pac. 336];