Rohrbough v. Johnson

California Supreme Court Apr 15, 1895 No. No. 15776Published

Before: Haynes

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Holding. The court held that the plaintiff's possession of the hops was lawful and superior to the defendant's attachment, as the plaintiff had taken actual possession of the property upon satisfying the bailee's lien, thereby perfecting his security interest.

Issues

Whether a chattel mortgage on hops not authorized by statute is valid if accompanied by an actual change of possession.
Whether the plaintiff's possession of the hops was sufficient to defeat a subsequent attachment by a creditor.
Whether the plaintiff was entitled to subrogation to the bailee's lien upon paying the charges for curing and baling the hops.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Whether the instrument be called a mortgage or a pledge does not, however, affect its efficacy as a security.”

“the plaintiff, being thus compelled for his own security to discharge the prior lien of Purcell, became subrogated to his lien as against the attachment, and upon this ground also he was rightfully in possession of the hops”

Synopsis

Chattel Mortgage — Harvested Crop — Common-law Mortgage — Change of Possession.—A valid statutory chattel mortgage cannot be made upon a harvested crop, but what is frequently called “a common-law chattel mortgage” may be taken upon any species of personal property, if followed by a delivery of the property to the mortgagee, and an actual and continued change of possession, as required by section 3440 of the Civil Code.

Id.—Delivery of Goods as Security—Pledge.—The delivery of goods to a creditor as security for a debt is not properly a common-law mortgage, nor is it a mortgage under the Civil Code, but is properly denominated a pledge, yet the question whether the instrument be called a mortgage or a pledge does not affect its efficacy as a security where there is a sufficient delivery and change of possession.

Id.—Construction of Statute of Frauds—Rule as to Change of Possession.—The construction fixed by the decisions of this court upon section 3440 of the Civil Code, which requires an immediate delivery and an actual and continued change of possession upon a sale of personal property, is equally applicable to chattel mortgages, other than those authorized by statute, and the same rule must apply in determining what is an immediate delivery and an actual and continued change of possession, viz., that these questions must be determined upon the facts of each particular case.

Id.—Mortgage Giving Right of Possession—Debt not Due—Delivery from Bailee to Mortgagee—Attachment.—Where the mortgage of a harvested crop provided that, if the mortgagee should deem himself insecure, he might take possession of the property, and sell it without' foreclosure, and the crop had been delivered by the mortgagor to a bailee for the purpose of being cured and made into bales, the. bailee having knowledge of the mortgage, and having a lien upon the crop dependent upon possession for the value of his services in curing and baling the crop, the mortgagee may, as soon as the crop is dried and baled, pay to the bailee the amount of his charges, and lawfully take possession of the crop from him, and may maintain his right of possession as against an attaching creditor of the mortgagor, although the debt secured by the mortgage was not due.

Id.-—Lien of Bailee—Subrogation.—The mortgagee being compelled for his own security to discharge the lien of the bailee is subrogated to that lien as against an attaching creditor of the mortgagor, and may rightfully defend the possession of the crop by virtue of such subrogation.

Id.—Evidence—Agency—Power of Attorney.—Where a note and mortgage were given to the plaintiff through his agent, the note and mortgage, together with a power of attorney from the plaintiff to the agent, are properly admitted in evidence; and the power of attorney is the best evidence of the agency.

Haynes, C. Action in claim and delivery for fifty bales of hops.

Judgment for the plaintiff was entered upon the findings, and defendant appeals from the judgment and from an order denying his motion for a new trial.

Joel Eveland, a hopgrower, removed and delivered his crop of 1893 to one Felix Purcell at his hop-house, to be by him dried and baled. On September 11,1893, Eveland executed to the plaintiff his promissory note, payable eighty days after date, for the sum of twelve hundred dollars, which sum the plaintiff had advanced to Eveland to enable him to pay for picking the hops; and, to secure the payment thereof, Eveland also executed to the plaintiff an instrument purporting to be a chattel mortgage, in which the mortgaged property is described as “ consisting of the whole of the said mortgagor’s hop crop for the year 1893, and now being and lying in the hop-house of Felix Purcell, situated in Round Valley township, Mendocino county, California.” Said mortgage also provided that, if the mortgagee should thereafter deem himself insecure, he might take possession of said property and sell the same in the manner provided by law, without foreclosure, and from the proceeds pay the whole amount due, as specified in the note and mortgage. This mortgage was recorded on the 13th.

When the hops were dried and baled plaintiff sent his teams to remove them, but Purcell refused to deliver them until his charges for- curing and baling were paid. Plaintiff thereupon paid said charges, amounting to one hundred and eighty dollars and twenty-five cents, whereupon Purcell, who had been informed by Eveland that he had mortgaged the hops to plaintiff, delivered them, and they were thereupon placed upon plaintiff’s wagons [147]and hauled to Ukiah, in the same county, where they arrived on October 2, 1893.

On September 30, 1893, one Marks commenced an action in the superior court of Mendocino county against said Eveland to recover the sum of eight hundred and seventy-nine dollars and fifty-three cents and interest, upon a promissory note made by Eveland in 1890, and procured a writ of attachment to be issued and placed in the hands of J. R. Johnson, the defendant in this action, who was then the sheriff of said county. Upon the arrival of the hops at Ukiah, and while upon plaintiff’s wagons upon the street, the defendant, as such sheriff, seized the hops under said writ, and afterward sold them under the judgment procured by Marks in said action as the property of Eveland. Upon the refusal of the sheriff to surrender the hops to plaintiff, upon demand duly made, this action was brought.

Rohrbough v. Johnson

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