Kahriman v. Jones

[255]

LANGDON, J.

This is an appeal by the plaintiff from a judgment against him, after defendants’ motion for a non-suit had been granted, in an action in which plaintiff sought to recover from the defendants damages for alleged conversion of an automobile upon the theory that at the time of its seizure the plaintiff was the holder of a valid and subsisting chattel mortgage upon said property. The purported chattel mortgage was offered in evidence and the only question presented upon the appeal is its sufficiency to meet the requirements of section 2956 of the Civil Code. It is admitted that the instrument was accompanied by the proper affidavit and acknowledged and recorded in like manner as a grant of real property, as required by section 2957 of the Civil Code.

Section 2956 of the Civil Code prescribes the form of a mortgage of personal property in this state and this form includes a description of the property mortgaged and a description of the debt for which the mortgage is given, specifying the amount of said debt, the date due, the amount of interest payable thereon; and, in the event the mortgage is given to secure the payment of a note, the form is to contain a description of said note. In the instant case the mortgage merely recited that it was given “as security for the payment of four promissory notes totaling $5,329.14 and also the repayment of all advances by the mortgagee or assigns to the mortgagor not exceeding the sum of $100, etc.” This mortgage was dated March, 1920, and the notes which were introduced in evidence and asserted to be those secured by the mortgage were dated December, 1923, and recited that they were renewals of notes given during the years 1918 and 1919.

It thus appears that the mortgage on its face would give no notice, to third persons as to the due date of the debt secured thereby.

The provisions of the Civil Code relating to chattel mortgages have been strictly construed by the courts, as, indeed, they should be, for those sections give a special right to a lien independent of possession, a situation unknown to the common law with relation to personal property. It was said in

Cardenas

v.

Miller,