Hackett v. Manlove

Baldwin J. delivered the opinion of the Court—Cope, J. concurring.

Plaintiff had a mortgage on chattels, executed to him by one Meshaw. The property, by the terms of the mortgage, was suffered to remain in the possession of the mortgagor, and, while in this condition, the plaintiff sued out an attachment, (for some two hundred dollars,) which the Constable levied on the property, but without removing it. While it was in charge of this officer, the plaintiff asked the Constable to hold the goods for him, as well for the purposes of the mortgage as of the attachment. This the Constable agreed to do. Under these circumstances, the defendant, Sheriff of Sacramento County, by virtue of process issued to him at the suit of Rogers v. Meshaw, levied upon, and took possession of, the property in the hands of the Constable—discharging the lien of the attachment. The property is worth one thousand dollars. The Court held, that upon these facts, the plaintiff could not recover, and nonsuited him.

The Appellants, however, say that the statement of the Judge does not correctly represent the case they presented below.

The plaintiff offered to show on the trial, that the account, on which Rogers’ attachment was based, was false and fraudulent, and the judgment, afterwards taken by default, fraudulent and collusive. But the Court refused to admit this proof. The mortgage of Hackett provides that if Meshaw shall pay the promissory note, (for one thousand dollars,) and the accruing interest, (at the rate of two per cent, a month, payable monthly,) and, in the meantime, well and truly hold the goods, and account for the proceeds thereof, and surrender the same to the said Hackett, upon any default of the payment of the interest or the principal of the note, as the same shall accrue, then this act of sale, which is intended as a mortgage, to be null and void—otherwise to remain in full force.

There was evidence tending to show, that, after the levy made [89]by the Constable, Meshaw agreed with Hackett to let him have the goods, or the possession of them, and that Hackett was about the store exercising some acts of control over the property; also, that the Constable, at Hackett’s instance, agreed to hold the goods for Hackett, under the mortgage. The Constable put in a keeper, who was apprised of this agreement. This was before the levy by the Sheriff.

The Respondent argues that this mortgage is fraudulent, inasmuch as possession was not delivered. Conceding this, the question arises as to the relative rights of these parties. The mortgage was not absolutely void; it was only voidable at the instance of subsequent purchasers and bona fide creditors. But between the parties, the mortgage is good. It vests, as we consider—being a conveyance of chattels—the legal title to the property in the mortgagee, subject to be divested on a compliance with the conditions prescribed in the act. Upon default, the title vested. There was default in the payment of the interest, and the Constable’s attachment was sued out in part for that interest. Concede that, in order to maintain trespass against the Sheriff, there must be, not only property in the plaintiff, but possession, or an immediate right to the possession; and concede, further, that the breach of the contract did not give this immediate right—still, it became the duty of Meshaw, on default of paying the interest, to give up the possession; and his assent to the taking of possession, and the taking of possession, so far as possession was, under the circumstances, susceptible of being so taken—was enough to entitle the plaintiff, at once, to the property, subject only to his own attachment lien.