Shoobert v. De Motta (1896) · DecisionDepot

Shoobert v. De Motta

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 31, 1896 No. Sac. No. 18Published

Before: Harrison

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Holding. The court held that a chattel mortgage does not create a lien on the offspring of mortgaged animals if the offspring were conceived after the mortgage was executed. Under the Civil Code, the mortgagor retains title to the property, and the mortgagee's lien is limited to the property specifically described in the mortgage.

Issues

Whether a chattel mortgage on sheep extends to lambs conceived and born after the mortgage was executed.
Whether the mortgagee has a right to the possession of offspring born to mortgaged animals after the mortgage date.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of any express agreement upon the subject, the lien created by a mortgage is limited to the property which is described in the mortgage”

Synopsis

Appeal from a judgment of the Superior Court of Tulare County and from an order denying a new trial. W. W. Cross, Judge.

Harrison, J. June 22, 1893, one Cascalia executed a mortgage to the plaintiffs’assignor upon a band of sheep which were then in Kings county, consisting of seventeen hundred ewes and ten hundred and fifty lambs. The sheep were afterward removed to Tulare county, [217]and in August, 1893, while they were in Tulare county, bucks were put with the ewes, and during the months of January and February, 1894, there were born, as the offspring of the ewes, thirteen hundred .lambs. The court finds that the period of gestation in the case of sheep is about five months. April 18, 1894, Cascalia, in consideration of an indebtedness from him to the defendant, executed to the defendant a bill of sale of these thirteen hundred lambs, and on the 21st of April the lambs were delivered to the defendant, and taken away by him. The plaintiffs brought the present action to recover the possession of the lambs or their value. Judgment was rendered in favor of the defendant, and the plaintiffs have appealed.

It has been held in some states that the lien of a mortgage of domestic animals extends to the increase of the animals during the life of the mortgage, whether the terms of the mortgage include such increase or not, and, following these decisions, such a rule is stated in text-books upon chattel mortgages. It will be found, however, upon examination of these cases, that the decisions therein are based upon the principle of the common law, which was in force in those states, that by the mortgage the mortgagee is vested with the title to the mortgaged property, and becomes the owner thereof; and that in the case of domestic animals, applying another rule of both the common and the civil law, that “ the brood belongs to the owner of the dam or mother—partus sequitur ventrem” (2 Blackstone’s Commentaries, 390), he thereby becomes the owner of such increase, and, being the owner, his title in any action at law must prevail. The earliest application of this rule was in the case of a mortgage of a female slave (Hughes v. Graves, 1 Litt. 317), which was decided in Kentucky in 1822, and was afterward followed in Maryland in 1836, in the case of Evans v. Merrihen, 8 Gill & J. 39, which also involved the offspring of a female slave which had been mortgaged; and these cases are cited as the authority upon which cases involving the same ques[218]

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Prior to 1873 the giving of a chattel mortgage in this state vested the mortgagee with the title to the property mortgaged (Heyland v. Badger, 35 Cal. 404), and, while .this rule of law prevailed, the foregoing decisions would [219]have been, applicable. The Civil Code, however, went into effect at the beginning of that year, and under its provisions the mortgagor is not, by the execution of the chattel mortgage, divested of his title to the property, but still remains its owner, while the mortgagee has only a lien thereon. (Civ. Code, sec. 2888; Bank of Ukiah v. Moore, 106 Cal. 673.) Consequently, the foregoing decisions cannot be regarded as having authoritative force, but the rights of the parties must be determined upon the general principles controlling the relations between a mortgagor and mortgagee. In the absence of any express agreement upon the subject, the lien created by a mortgage is limited to the property which is described in the mortgage, and does not include other property of the same character which the mortgagor may have afterward acquired and placed with the mortgaged property. (Jones on Chattel Mortgages, secs. 138, 154.) If the mortgagor retains the possession of the mortgaged property, he is at liberty to deal with and use it as its owner, and whatever income or profit may be derived from such use belongs to him, and not to the mortgagee. (See Simpson v. Ferguson, ante, p. 180.) If, in the case of sheep, the use to which he puts the ewes is for breeding lambs, there can be no sufficient reason given why the lambs that are dropped by the ewes should belong to the mortgagee, any more than the wool- which is sheared from their backs. We are aware that the supreme court of Texas, in First Nat. Bank v. Western Mortgage etc. Co., 86 Tex. 636, held that, although by the laws of that state the mortgagor of personal property remains the owner thereof after the execution of the mortgage, the foregoing decisions control the right of the mortgagee to the increase of domestic animals; but the opinion in which the decision is given merely states the proposition without presenting any reasoning in its support, and does not meet with our approval.

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