In re Fischer

Belcher, C. On the sixteenth day of April, 1889, F. L. Fischer executed and delivered to Hermann Meese his promissory note for four thousand four hundred dollars, bearing interest at the rate of ten per cent per annum; and to secure the payment of the note, he at the same time executed and delivered to Meese a chattel mortgage upon “ all the printing-presses and material situated at Nos. 310 and 312 Battery Street, in the city and county of San Francisco, state of California, belonging to said mortgagor, and more particularly described as follows, to wit.” Then followed a long list or schedule of the articles intended to be covered by the mortgage, including, among others, “ four tables, shelving, partition, desk, office furniture, one stove, lamps, signs, glass showcase, clock, and one iron safe.” The mortgage was properly signed, acknowledged, certified, and recorded, and was accompanied by the affidavit required by the statute in such cases.

On the 24th of July, 1889, Fischer was adjudged by the superior court of Alameda County to be an insolvent debtor, and at a meeting of his creditors, held on the 26th of August following, William P. Lawlor was duly elected assignee of his estate. Thereupon Lawlor duly .qualified as such assignee, and the clerk of the court assigned and conveyed to him all the estate, real and personal, of the insolvent.

On the 26th of November, 1889, Meese, under section 44 of the Insolvent Act, filed in court a petition, which was in all respects sufficient, praying that the property mentioned in his mortgage be sold, and the proceeds applied in payment of his said promissory note. To this petition Lawlor, as assignee of the estate, filed an answer contesting the validity of the mortgage as against the creditors of the insolvent.

[525]Upon the issue thus raised, the case was tried, and judgment given and entered that all the property described in the mortgage, except the “ four tables,” etc., above mentioned, be sold by the assignee, and that the money realized from the sale, after deducting therefrom certain costs and disbursements, be turned over to Meese, to be applied on the debt secured by his mortgage.

From this judgment, and an order refusing a new trial, the assignee appeals; and as stated by his counsel, the only question presented for decision is: “ Is the chattel mortgage given by Fischer void as against creditors, as to all the property included in it, or is it valid as to the printing-presses and material, and void only as to the rest of the property? ”