Bank of Ukiah v. Moore
Before: Searls
Synopsis
Chattel Mortgage—Sheep and Neat Cattle—Registry—Amendment of Code not Retroactive.—A chattel mortgage upon sheep and neat cattle made prior to the amendment of March 9, 1893, of section 2955 of the Civil Code, is not entitled to registry, and the recording of it would impart no constructive notice, sheep and neat cattle not being among the articles provided to be mortgaged prior to said amendment; and the recording thereof after the passage of the amendment does not render the mortgage valid as a statutory mortgage; nor does the amendment have any retroactive effect to make a statutory mortgage of that which was not such when it was executed, it not being expressly declared in the amendment that it is retroactive,
Id.—Registry Law—Retroactive Effect—Invalid Statutory Mortgage__Registry laws are usually not held to have retroactive effect, except so far as they may aid vested rights under valid instruments; and, where there is no valid statutory mortgage to be recorded, a subsequent authority of law to record a similar mortgage does not operate to give constructive notice to the prior record of the invalid mortgage.
Id.—Common-law Mortgage.—A mortgage upon personal property not authorized to be mortgaged by the statute is nevertheless valid as a common-law mortgage between the parties, and as against all other persons except creditors of the mortgagor and subsequent purchasers in good faith for value.
Id.—Rights of Chattel Mortgagee—Possession—Remedy at Law.—In this state a mortgage of personal property does not transfer the title or the right to immediate possession to the mortgagee, unless expressly so provided in the mortgage; and, if the mortgage is not due and does not provide for a change of possession of the mortgaged property, the mortgagee is not entitled to possession, and has no remedy at law to prevent an interference with the mortgaged chattels.
Id.—Remedy in Equity—Injunction —Receiver.—As against the mortgagor of chattels under a common-law mortgage to secure a debt not due, and also as against purchasers with notice and without consideration, the mortgagee may maintain a bill in equity for an injunction and receiver to preserve the mortgaged property from destruction or interference, so that it may answer the purpose of the mortgage, although the time for payment set out in the mortgage has not arrived.
Id.—Defendant Claiming as Bona Fide Purchaser—Dissolution of Injunction.—Where a defendant, in the suit for an injunction, who had no constructive or actual notice of such common-law mortgage, pleads that he is a purchaser of the mortgaged property in good faith and without notice of the mortgage, and denies all the equities of the complaint, a dissolution of the injunction as to such defendant, upon the complaint and his answer, is proper.
Searls, C. This is ,a bill for an injunction by the corporation plaintiff in aid of the preservation of certain personal property (neat cattle, sheep, etc.), upon which said plaintiff holds a chattel mortgage.
Defendants demurred to the complaint, and moved the dissolution of an injunction issued in the cause for the discharge of a receiver appointed therein.
The demurrers (two in number) to the complaint were sustained by the court upon the grounds stated therein, viz., that the complaint did not state facts sufcient to constitute a cause of action. The injunction was dissolved, the receiver discharged, and plaintiff having failed to amend, final judgment went for defendants.
Defendant Mahulda 0. Drew filed an answer with her demurrer. The other defendants did not answer. The appeal is by plaintiff from the final judgment and from the order dissolving the injunction.
The complaint to which the demurrers were interposed avers, in addition to the more formal portions thereof:
1. The execution, June 30, 1892, of a promissory note for twenty-nine thousand nine hundred and seventeen dollars and eighty-eight cents, with interest payable one year after date by defendant Gibson to plaintiff, and the execution of a chattel mortgage as security for the payment thereof by said Gibson upon certain neat cattle and sheep described therein, and upon the ranch of defendant Gibson, in the county of Mendocino.
2. The mortage complied with the requirements of section 2956 of the Civil Code, stated the occupation of the parties, and was accompanied by the affidavit, and was acknowledged and certified as required by said section, and was afterward, and on the ninth day of May, 1893, recorded as a chattel mortgage, etc.
[6793]. All the mortgaged property is inadequate to pay the note, and the defendants are insolvent.
4. In violation of the covenants of the mortgage, and for the purpose of depriving plaintiff of its security, and since the recording of the mortgage, defendant Gibson has made a pretended sale of the mortgaged property to the other defendants, who have taken possession thereof, and are threatening to appropriate and convert the same to their own use, and will do so, and deprive plaintiff of its security, unless restrained by an order of court.
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