Kuehn v. Don Carlos

MARKS, J. This is an appeal from a judgment in which J. E. Beck was awarded possession of an airplane, or its value, if possession could not be had.

[296]This case has been before this court for decision once before. (Kuehn v. Don Carlos, 5 Cal. App. (2d) 25 [41 Pac. (2d) 585].) Under the facts there recited we held that the mortgagee (appellant here) had in effect released the lien of his mortgage for the purposes of the execution sale. This so-called release has more the nature of an estoppel than an actual release of a mortgage. A judgment in the mortgagee’s favor was reversed. Defendants urge that our first decision established the law of the ease and that, therefore, the judgment in their favor here must be affirmed.

We will repeat only those facts set forth in the first opinion which are necessary to an understanding of the conclusions here reached.

A reading of our former opinion discloses that the holding, that the lien of the chattel mortgage had been in effect released for the purposes of the execution sale, was based largely on documentary evidence. Those same documents were before the court at the second trial. The other facts upon which the conclusion of the release for the purposes of the sale was predicated were also proved at the second trial. In this respect there is no difference between the evidence at the first trial and that at the second. It follows that as the conclusion of a release for such purposes was drawn in the first decision it must be drawn here. (Whitney v. West Coast Life Ins. Co., 49 Cal. App. 229 [193 Pac. 149].) As the lien of the chattel mortgage had been in effect released for the purposes of the execution sale, the mortgaged property was sold free of that lien at such sale. That sale was legally conducted, a purchase price was paid, and title to the airplane passed to the purchaser. Defendant Beck purchased the airplane from that purchaser for value and title now rests in him.

Plaintiff seeks to escape this conclusion by urging that the facts proved at the second trial were materially different from those proved at the first. He points to the testimony, at the second trial, of Herbert P. Sears, the judgment creditor in the action in which the airplane was sold under execution, to the effect that the agreement between himself and plaintiff, upon which was based the conclusion of the release for the purposes of the execution sale, had been rescinded before that sale. This evidence does not appear in the record of the first trial.