Garoutte, J., dissenting.—The facts may be stated briefly as follows:
1. On March 14, 1894, plaintiff's mortgage was executed, and, at that date, the mortgagor resided in Kings county, and the mortgaged property was also there situated.
2. The mortgaged property was thereafter, on April 3, 1894, and before the mortgage was recorded anywhere, removed to the county of Tulare, where it was attached by the defendants, on April 23, 1894, after plaintiff’s mortgage had been recorded in the county of Kings, but before its recordation in the county of Tulare.
Upon the foregoing statement of facts the only question presented is: Was the mortgage of plaintiff recorded in the manner required by law, before the levy of the attachment under which the defendants justify? For, if it was so recorded, then plaintiff is entitled to a judgment upon the findings. And the solution of this question is dependent upon the true construction of two sections of the Civil Code. These sections read:
“ Sec. 2959. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor resides, and also in the county in which the property mortgaged is situated, or to which it may be removed."
[323]“ Sec. 2965. When personal property mortgaged is thereafter by the mortgagor removed from the county in which it is situated, it is, except as between the par- , ties to the mortgage, exempted from the operation thereof, unless either, 1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property has been removed; or 2. The mortgagee, within thirty days after such removal, takes possession of the property as prescribed in the next section.”
A fair construction of section 2959 is that the mortgage must be recorded in the county where the mortgagor resides at the time of its execution. And, if the property is situated in a different county at that time, then the mortgage must also be recorded in the county where the property is then situated. Jones on Chattel Mortgages, section 251, says: “ It is the place of residence of the mortgagor at the time the mortgage is executed, and not his place of residence at the time it is recorded or filed, that determines the place where it should be recorded or filed.” Cobby on Chattel" Mortgages, section 575, says: “ The place of residence at the time it is executed, and not at the time it is filed, is what governs.” While the text of these writers is not fully borne out by cases they have cited, owing to the peculiar language of the various statutes, under which these decisions were made, I think the general principle they have stated entirely sound; and the case of First Nat. Bank v. Weed, 89 Mich. 357, supports such a construction of our statute. We have statutes authorizing chattel mortgages in nearly every state in the Union. About one-half of these statutes provide in terms that the mortgage must be recorded where the mortgagor resides at the time the mortgage is executed, while the remainder are couched in language similar to our own. There does not appear to be a single statute of them all that in terms requires the mortgage to be recorded in the county where the mortgagor resides at the time the mortgage is recorded. And, in the deci[324]sion of many cases under similar statutes from other states, the courts appear to assume without question that the residence of the mortgagor, and location of the mortgaged property, at the date of the execution of the mortgage, are the all-controlling elements.
It necessarily follows from the foregoing that the fact of the mortgage not having been recorded in Kings county until after the sheep were removed to Tulare county, is immaterial. That portion of section 2965 here involved means that the mortgagee had thirty days from such removal within which to record his mortgage in the county to which the property is removed, and that he loses no rights if he records his mortgage within that time. In the present case the mortgage was recorded in Kings county—the county in which the mortgagor resided, and in which the property was situated at the time of its execution—prior to the levy of defendants’ attachment. And, although the attachment was levied upon the property in Tulare county prior to the recordation of the mortgage in Tulare county, still it was levied at a time before the thirty days had expired in which the mortgagee had the right to there record the mortgage. If this attachment is binding against the mortgagee, it would have been binding against him, if levied the very day the property passed into Tulare county, and thús the purpose of the statute in giving the mortgagee time in which to record his mortgage would be defeated, and the statute rendered unavailing for any purpose. By reason of the foregoing views, the case then presents itself exactly as though the property had never been removed to Tulare county, but had remained in Kings county, and this attachment had been levied there as of the time it was actually levied. Under such conditions, the writ of attachment being levied subsequent to the recordation of the mortgage, it should not prevail.
It is urged by respondent that the mortgage must be recorded immediately upon its execution, and, if not so recorded, it is void; but I find no law for such a con[325]elusion. The statute has no provision requiring immediate recordation, and it would be judicial legislation for this court to so declare the law.
Section 2957 of the Civil Code declares: “A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the affi davit of all the parties thereto that it is made in good faith, and without any design to hinder, delay, or defraud creditors; or 2. It is acknowledged or approved, certified and recorded, in like manner as grants of real property.”
Under the statutes of other states, which, like ours, contain no provision fixing a definite time in which a chattel mortgage must be recorded, in order that it may not be void, it has been held that mere delay in such recordation in no way invalidates the mortgage, and that the holder of the mortgage, in not recording it, simply assumes the perils and risks of losing his security by the intervention of other liens, or subsequent-purchasers. (Jones on Chattel Mortgages, sec. 237; Wilson v. Leslie, 30 Ohio, 166; Hicks v. Williams, 17 Barb. 527; McVey v. English, 30 Kan. 368; Mitchell v. Black, 6 Gray, 100; Crooks v. Stuart, 2 McCrary, 13.) I believe such to be the law in this state.
Respondents rely, both directly and by analogy, upon section 3440 of the Civil Code, which declares that all transfers of personal property are void, unless accompanied by an immediate delivery, and followed by an actual and continued change of possession. But this section cannot be invoked to any degree in this case. It is not applicable, for in terms mortgages upon personal property, when allowed by law, are exempted from its provisions. Neither is there any analogous principle of law which will aid respondents’ contention. Berson v. Nunan, 63 Cal. 551, and like cases, declare that the recordation of the mortgage is the equivalent of an immediate delivery and continued change of possession, but there the court only meant to say, and the language can [326]have no other reasonable interpretation, that the recordation of the mortgage when had, from that time was the equivalent of the immediate delivery and continued change of possession referred to in section 3440 of the Civil Code, The recordation of the mortgage is no part of the execution, no more than recordation would be an element in the execution of a deed. It is substantially so stated in Berson v. Nunan, 63 Cal. 551.
I think the judgment should be reversed.