First National Bank v. Silva

SHENK, J., Concurring and Dissenting.

I concur in the judgment on the ground that the record discloses that appellant assented to the creation of a statutory lien preferment as against itself. The facts were stipulated. On the first day of September, 1923, the respondents Donnelly and Clark became the lessees of 13,760 acres of land in Madera County formerly held under lease by the respondent Silva. While in possession of the premises Silva had mortgaged some 700 head of cattle to the plaintiff’s assignor with the usual provision in the mortgage that on the default of the mortgagor the mortgagee would have the right to take possession of the mortgaged property without notice. On September 1, 1923, Silva was in default and the cattle were on said premises. On that day Donnelly and Clark notified the appellant that they were informed that the appellant had an interest in said livestock and that from September 1, 1923, a charge of one dollar per head per month would be made against the appellant for pasturage. Under date of September 5th the appellant’s representative notified Donnelly and Clark that the cattle would be removed in ten days. They were not removed and when on November 22, 1923, their possession was demanded by the appellant such possession was refused on account of nonpayment of pasturage charges. Under these circumstances the implied consent of the appellant that pasturage charges would accrue

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and the lien thereof attach would seem to have been satisfactorily shown.

But I cannot agree that under our law an agistor’s lien has priority over a pre-existing recorded chattel mortgage. It is conceded that an agistor’s lien did not exist at common law and the well-established rule is not questioned that under a statute which creates a lien which did not exist at common law such lien has no priority unless plainly authorized by the statute which creates it. Sections 3051 and 3052 of the Civil Code do not expressly create a preference as to the liens provided for in section 3051, and, in my opinion, such preference is not fairly implied from the language used. As to those which were liens at common law no difficulty is encountered, for under established rules they may be accorded priority. Such a lien was involved in

Mortgage Securities Co.

v.

Pfaffmann,