Berson v. Nunan

McKee, J. This was an action of replevin brought by the plaintiffs to recover certain household furniture which had been seized by the defendant as sheriff of the city and county of San Francisco, under an execution issued in favor of C. H. Voight against Maria Trendle. The seizure was made on the 3d of [551]November, 1879. At the time, the furniture was in the actual possession of the execution debtor, who was using it in the business of keeping a boarding and lodging house; but she had purchased the furniture from the plaintiffs and had given her promissory note, secured by a chattel mortgage upon the furniture, for an unpaid balance of the purchase money. The mortgage was verified and acknowledged as required by sections 2956, 2957, Civil Code, and was recorded on the 29th of January, 1878, as required by section 2959, Civil Code.

Subsequently to the recording of the mortgage, namely, in April, 1879, the mortgagor also made a formal bill of sale to the plaintiffs of her interest in the furniture; but by an instrument in writing, executed by the plaintiffs and delivered simultaneously with the execution and delivery of the bill of sale, the plaintiffs acknowledged that the bill of .sale was intended as security to them for payment of the rent of the house, in which the execution debtor was carrying on the business of keeping a boarding and lodging house.

These transactions were binding between the parties. The title to the furniture passed to the plaintiffs. Under the chattel mortgage it continued vested in them, until it was reinvested by the performance of the mortgage conditions. (Heyland v. Badger, 35 Cal. 404; Hackett v. Manlove, 14 Cal. 85.) But the equitable interest of the mortgagor in the property was subject to .the disposal of the mortgagor according to law, or to levy on execution sale according to law. Section 2969, Civil Code, provides as follows: “Before personal property mortgaged can be attached or levied upon, the officer must pay to the mortgagee the amount of the mortgage debt and interest, or must deposit the same with the county clerk or treasurer, payable to the order of the mortgagee.” By the record of the mortgage the officer had notice of the mortgage debt before making the levy, and after he had levied upon the property, the plaintiffs gave him actual notice of their mortgage claim, and the amount due upon it, and that they also claimed the property by the bill of sale. Yet the defendant neither paid nor deposited the amount of the mortgage debt and interest as required by the Code. The act of the officer in levying upon the property, by the execution in his hands was, therefore, wrongful.