Alferitz v. Perkins

HAYNES, C. This appeal is from the judgment upon the judgment-roll. The findings show the following facts:

On December 7, 1893, one Miguel Lujea executed his promissory note to the plaintiff for the sum of three thousand six hundred dollars, payable six months after date, and on the same day executed to the plaintiff, as security therefor, a chattel mortgage upon two thousand head of sheep then owned by him and in his possession in the county of Fresno, and in which the mortgaged property was-described as follows: “Two thousand sheep and the increase thereof, two mules and two horses, now in the county of Fresno, state of California.”

This mortgage was in all respects duly executed, and was recorded in Fresno county, and afterward in the counties of Mariposa, Stanislaus, and Madera, and was made in good faith to secure said note and certain advances therein provided for.

That in 1894 the mortgagor, being then in the county of Mono with said sheep, with the consent of the' plaintiff, exchanged five hundred wethers, part of said two thousand sheep, to another party for five hundred ewes which were mingled with the remaining fifteen hundred so mortgaged, and thereafter could not be distinguished from them. That in January, 1895, there were born to the ewes of said band of two thousand sheep one thousand Iambs.

That in May, 1894, Bosenthal and Kutner brought suit in justice’s court in the county of Madera against said Lujea, the mortgagor, and procured a writ of attachment to be issued, under which the defendant in this action, a constable, attached three hundred and twenty of said lambs, and afterward sold the same for the sum of two hundred and eighty-eight dollars; and this action is prosecuted to recover from the defendant (said constable) the value of said three hundred and twenty lambs so attached and sold, and damages; and on the facts so found the court gave judgment for the defendant.

Several grounds are urged by respondent in support of the [393]judgment, and each ground is combatted and elaborately argued on behalf of appellant.

These grounds, as stated by respondent, are as follows: "1. The description, Two thousand sheep and the increase, thereof/ is insufficient and void as against respondent; 2. The mortgage did not cover the offspring of the ewes; 3. That the alleged mortgaged property was so confused and mingled with the unmortgaged property as to render it impossible to identify and segregate the same,” 4. That an action for the conversion of the property will not lie.