Harms v. Silva

Temple, C. This action is to recover one hundred tons of baled hay, or the value. Defendants had judgment, and plaintiff appeals from it and the order refusing a new trial.

The hay was raised by Silva, who, on January 21,1889, mortgaged the same, then a growing crop, to Keating, to secure the sum of $350, with interest, also “ whatever further necessary costs that may be needed to guard and care for said crops.”

The mortgage was duly executed, and had attached to it the affidavit required by section 2957 of the Civil [639]Code; but the officer neglected to certify the acknowledgment, and Keating had the mortgage recorded by the county recorder, without the certificate.

Afterwards, March 29,1889, Silva mortgaged the same crop to plaintiff, to secure a debt due from Silva to him. Plaintiff took his mortgage with full knowledge of Keating’s mortgage, and expecting at the time to obtain a second lien, being unaware of any defect.

■ Plaintiff’s mortgage was duly executed, and was recorded on the day it was executed.

Each mortgage contains a stipulation giving the mortgagee a right to take possession of the crop when harvested. June 12, 1889, the hay having been cut and baled, the plaintiff attempted to take possession, and did receive and haul away eight bales. Returning for more, he found defendant Keating in possession, whereupon he commenced this action.

The only question in the case is, whether Keating’s mortgage is void as to plaintiff.

Section 2955 of the Civil Code prescribes that chattel mortgages may be made upon certain personal property therein enumerated, and including growing crops.

Section 2956 provides a form with which such mortgage must substantially comply. Keating’s mortgage does substantially comply with the prescribed form.

The next section makes such mortgage void " as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property, in good faith and for value, unless” accompanied by a certain affidavit and acknowledgment, proved, certified, and recorded in like manner as grants of real property.

The fact that the mortgage, in the absence of a proper record, is expressly made void as to purchasers and encumbrancers for value and in good faith, implies that it is valid as to all others without such record.