Modesto Bank v. Owens
Before: Temple
Synopsis
Appeal—Notice—Proof of Service—Separate Affidavit—Dismissal.— 1 The fact that proof of service of the notice of appeal is not attached to the notice, hut is embodied in a separate affidavit filed in the court below and printed in the transcript, is of no consequence, and does not entitle the respondent to a dismissal of the appeal, whether the proof of service is or is not required to be brought up in the record, under section 950 of the Code of Civil Procedure.
Mortgage—Rents, Issues, and Profits—Chattel Mortgage upon Crop.— A subsequent chattel mortgage upon a crop takes precedence of a mortgage upon the land, “and the rents, issues, and profits thereof,” which was not executed as the code requires chattel mortgages to be executed; and the proceeds of the sale of the harvested crop cannot be applied to the payment of any deficiency arising upon foreclosure of the real estate mortgage.
Id.—Execution of Chattel Mortgage—Affidavit—Partnership.—Where one of the parties to a chattel mortgage is a partnership firm, the affidavit may he made, on the part of the partnership, by one of the members of the firm, described as “of and for the firm.”
XD—Notice of Real Estate Mortgage.—The real estate mortgage, not haying been executed as a chattel mortgage, did not cover the crop, but constitutes a lien upon the land only; and it is immaterial whether the mortgagee of a chattel mortgage upon the crop had notice of the real estate mortgage or not.
Id.—Foreclosure—Rights of Mortgagee of Crop—The holder of a chattel mortgage upon the crop, made a party defendant to the foreclosure oí the mortgage upon the land, has an interest in the crop, and need not seek a foreclosure of the chattel mortgage, nor be entitled to such foreclosure, upon the filing of an answer, in order to be entitled to resist the wrongful application of the crop to the deficiency arising upon foreclosure of the mortgage upon the land, which constituted no lien upon the crop.
TEMPLE, J. This is an action to foreclose a mortgage. August 24, 1892, defendant W. C. Owens made to plaintiff a mortgage upon certain lands to secure an indebtedness due it. After a description of the land the mortgage contained the following words, “together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, and the rents, issues, and profits thereof.” It was not executed as the code requires chattel mortgages to he executed. In the fall of 1894 Owens seeded the land to wheat. Defendants Haslacher and Kahn contracted to furnish money to enable Owens to put in the crop, their advancements to he secured by a crop mortgage. Of' this contract plaintiff was fully advised before the crop was put in. The wheat was put in under the contract, and the crop mortgage given, executed in due form. Haslacher and Kahn appeared and made their defense in the action.
The court, upon the bringing of the action, appointed a receiver, who took the crop into possession.
The court found the facts as to the crop mortgage and that the indebtedness to Haslacher and Kahn had not been paid.
As matter of law, it was found that the proceeds of the sale of the crop should he applied to the payment of any deficiency due the plaintiff after the sale of the real estate, and the residue, if any, should he brought into court to abide the further order of the court. The decree is in accordance with this finding, and it is from this part of the decree that this appeal is taken.
[225]It is made to appear, perhaps somewhat irregularly, that subsequently to the judgment the receiver harvested and sold the grain, and that the proceeds are now held to await the result of this appeal, there being a deficiency judgment.
The mortgage involved in this ease, and the judgment entered, are in all material respects like those considered in Simpson v. Ferguson, 112 Cal. 180. Indeed, the decision rendered in that case seems as apt and appropriate to the main question involved here as it was to that case. This case was tried before that decision was made, or, in all probability, a different conclusion would have been reached.
The counsel for respondent recognize this, but still make a commendable, though desperate, attempt to maintain their judgment. The new points are highly technical, but will be briefly noticed.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)