Gambar halaman

of Patterson, it does not appear what infor- of publication valid against a collateral at. mation he got from those of whom he made tack such as is made here, and upon the authe inquiries; that for all the atfidavit shows thority of that case the affidavit here must these persons may have informed him that be held sufficient and the decree quieting tiPatterson was residing in Los Angeles, or tle to the lot in question in favor of Davis somewhere in the state; that a statement of and against Patterson to be valid. the result of his inquiries in the affidavit Now, as to the effect of the decree: While was essential to warrant an order of public respondent has contended here, though incation; that without it the court had no ju- effectually, that the decree is void, he also risdiction to make the order, and the order insists that, even if valid, the trial court for the service of summons and the service properly rejected it when offered as constiunder it and the decree were all void. It is

tuting a muniment of title in behalf of plaintrue, as claimed by respondent, that the af

tiff against the defendant; that the decree fidavit fails to state what information the

was only conclusive against Patterson and affiant received concerning the whereabouts parties in privity with him having notice of Patterson from those of whom he inquired

of the judgment (subdivision 2, $ 1908, Code concerning him. But in the case of Ligare

Cir. Proc.), and did not affect the rights of v. Cal. S. R. R. Co., 76 Cal. 610, 612, 18 l'ac.

the defendant Moore. And it is asserted by 777, it was held that such an omission was

respondent in his brief that this was the not fatal, if from the other facts stated in

view taken by the trial court. If so, it was the affidavit it could be reasonably inferred

incorrect. While the generai rule undoubtedthat such inquiries to ascertain the where

ly is that judgments bind only parties and abouts of the defendant were unavailing.

privies, still there is an exception to the In the case at bar the attidavit, in so far as

rule universally recognized which sustains it bears upon the point involved, stated that

their admissibility against third parties who Walter Patterson could not be found in the

are not parties or privies to the judgments state of California after diligent search

for certain purposes. This exception is that

the judgment rendered in an action involvmade therein for him by affiant; that such

ing title to property, and in which it is dediligent search consisted of making inquiries

termined that the title is in one of the parof each and every person from whom he had

ties to the action, is admissible in evidence reason to believe he would receive knowledge

in behalf of the party claiming under the of the whereabouts of Patterson. Then fol

judgment, and subsequently asserting a claim lows a statement of the persons of whoin he

to the property affected by it as a link in his made inquiries, and why he expected them

chain of title, although such judgment would to know of his whereabouts. In the case

not be conclusive on the party against whom cited the affidavit under consideration there

it is offered because he was not a party or containel the same statements, but, like the

privy thereto. It is admissible in evidence, case at bar, failed to state what the result

not for the purpose of defeating or affecting of the inquiries was. It was held, however,

any claim or title of a party who was not that the affidavit was sufficient; the court

a party or privy to such judgment, but solesaying: "It is argued that the affidavit for

ly as a muniment in an asserted title. In publication was insufficient on the question

Barr v. Gratz's Executors, 4 Wheat. (U. S.) of diligence. The Code provides that service

213, 4 I. Ed. 553, the rule is stated: “It is may be inade by publication (among other

true that in general judgments or decrees cases) where the person on whom it is to be

are evidence only in suits between parties made 'cannot, after due diligence, be found and privies. But the doctrine is wholly inwithin the state.' Code Civ. Proc. § 412. applicable to a case where the decree is not The affidavit in question first states that cer- introduced as per se binding upon any rights tain defendants, among whom is the plaintiff of the other party, but as an introductory here, have been sought for to obtain service fact to a link in the chain of plaintiff's title of summons thereon, but, after diligent

and constituting a part of the muniments search and inquiry, cannot be found within of his estate.

To reject the proof the state.' It then goes on to show what of the decree would be, in effect, to declare

that no title derived under a decree in chanviz., that the affiant 'has made inquiry of all cery was of any validity except in a suit persons from whom he could expect to ob- between parties and privies, so that in a suit tain information as to the residence of said by or against a stranger it would be a mere defendants.' It is not expressly stated what nullity. It might with as much propriety be was the result of these inquiries. But the argued that the plaintiff was not at liberty statement must be read in connection with to prove any other title deeds in this suit, what preceded it, viz., that after inquiry because they were res inter alios acta." To the said defendants 'cannot be found within the same effect are the cases of Kurtz v. St. the state.' And, so reading it, we think it is Paul & D. R. Co., 0) Jinn. 60, 657 N. W. 808; to be inferred that the inquiries were fruit- Gage v. Goudy, 111 Ill. 215, 30. X. E. 320; less." The court held the decree attacked | Railroad Equip. Co. v. Blair, 14.5 X. Y. 607, iu that case for insufficiency of the affidavit | 39 N. E. 902; Bussey v. Dodge, 94 Ga. 518,

kind of search and inquiry have been made, tha

21 S. E. 151; Skelly F. Jones, 70 X. I. Supp.

(151 Cal. 520) 447, 61 App. Div. 173. Also 24 Am. & Eng HIMMELS F. SENTOU'S et al. (L. A. 2,019.) Ency. of Law, D. 737; Freeman on Judy

(Supreme Court of California. July 20, 1907. ments, $ 416. These authorities declare the

Rehearing Denied Aug. 20, 1907.) exception to the general rule to be well estab- 1. CHATTEL MORTGAGES-MORTGAGED PROPlished that a party claiming under a judy- ERTY-REMOVAL-EFFECT. ment is entitled to prove it as a muniment

Civ. Code, $ 29963, provides that, where

mortgaged chattels are reinoved to another counin his chain of title, and we content our

ty, they are relieved from the operation of the selves simply with a reference to them as mortgage, except as between the parties, unless nothing to the contrary is cited by respond- the mortgagee within 30 days after such reent.

moval causes the mortgage to be recorded in the

county to which the property is removed or Applying this rule, then, to the effect of

takes possession. llcld that, where mortgaged this judgment considered with the other property is removed to another county by the proofs of title made by appellant, and it is

mortgagor, the mortgage remains a subsisting clear that the finding of the court complain

lien, of which the original record is constructive

notice to all the world during the 30 days after ed of, was not justified by the evidence. It such removal within which the mortgagee is auwas concedeil on the trial that in 1887 the thorized to continue the lien by re-recording the legal title to the lot in controversy was in

mortgage or taking possession. Walter Patterson, and the presumption is

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 9, Chattel Mortgages, 88 166, 167.] that the legal title continued in him until it was shown that he had conveyed it, or that


Where, after the removal of mortgaged hogs in some way it had become extinguished, or to another county, the mortgagor sold them to his title defeated or barred. It was defeated

It was defeated defendants. who slanghtered them and sold the and barred by the judgment obtained by Dil

meat within 30 days after such removal, the

mortgagee's failure to re-record the mortgage in vis, the predecessor of plaintiff, against Pat

the county to which the hogs were removed aftterson in 1894. As between these two, it er they had been killed did not impair his lien was there adjudged that the legal title, con

nor his right to recover against defendants for

the conversion of the hogs. ceded, and theretofore presumed to contin

[Ed. Yote.-For cases in point, see Cent. Dig. ue in Patterson, was, as against him, in vol. 9. (hattel Mortgages, $$ 167, 269.) Davis, and such adjudication was as eff ec- 3. SAME. tive evidence of title to the property in the In the absence of specific statutory provilatter, and as conclusive of any claim of

sions regarding the removal of mortgaged chatPatterson, or his privies, as if Patterson

tels, the regular original record of a chattel

mortgage is constructive notice to all the world, had made him a conveyance of it by deed. and the mortgage continues a valid lien, notA deed from Patterson to Davis would have withstanding the removal of the property to anbeen conclusive evidence against Patter

other town, county, or state. son that legal title had in fact been trans

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 9, Chattel Mortgages, § 166.] ferred to Davis by him, and, of course, would be admissible as a link in the asserted

In Bank.' Appeal from Superior Court, claim of plaintiff of title to the property. So

Los Angeles County; Walio M. York, Judge. with the judgment. As it was effective as

Action by James G. Himmels against Louis against Patterson's claim of title as if he

Sentous and another. From a judgment in had made Davis a deed to the property, it

favor of plaintiff, defendants appeal. Afwas, under the rule heretofore stated, ad

firmed. missible for the same purpose that his deed IIutton & Williams, Henry T. Gage, and W. would have been as a muniment of title. I. Foley, for appellants. Powers & Holland, Being so admissible, it, with the previous for respondent. concession of legal title in Patterson, and the presumption arising therefrom, together SLOSS, J. This is an action to recover with the conveyance from Davis to plaintiff, damages for the conversion of personal propestablished in him prima facie title to the erty. Plaintiff had judgment for $600, and property, which in the absence of any evi- the defendants appeal. dence of title in the defendant would have On November 22, 1901, one E. M. Coe made warranted a judgment in his favor against and delivered to plaintiff,' in the county of the defendant Noore, and the finding of the San Diego, his promissory note for $1,750, court in the face of this prima facie show- and, as security therefor, executed and deliving, that plaintiff' was not the owner, was ered to plaintiff a chattel mortgage upon 11 not justified by the evidence.

head of dairy heifers and 109 head of hogs, These are the only points made in the then situated in said San Diego county. The case, and for the reasons given the judg- | mortgage was duly acknowledged and was ment and order denying the motion of appel. | accompanied by the aflidavit of the parties, lant for a new trial are reversed with costs as required by Civ. Code. § 2957. Ondeon appeal to appellant, and affirmed as to cember 2, 1904, it was reorded in the office the Strohms, with costs in their favor.

of the recorder of San Diego county'. At all

the times named the mortgagor, E. M. Coe, reWe concui: MCFARLAND, J.; HEN- ! sided in San Diego county, and the mortgage SHAW, J.

ed property was in said county. On January 4, 1905. Coe, without the knowledge or con- added to it by the fact that plaintiff did not sent of the plaintiff, removed 86 head of subsequently record his mortgage in Los Anhogs, a part of the mortgaged property, from geles county. On the other hand, if the the county of San Diego, and had them ship- mortgage was a valid and subsisting lien for ped to Los Angeles county. There, on tho 30 days after removal, the defendants were following day, the 5th of January, 1905, he guilty of conversion in appropriating the sold and delivered said hogs to defendants, property and destroying it during such pewho, within 10 days thereafter, slaughtered riod. Wilson v. Prouty, 70 Cal. 196, 11 Pac. the hogs and sold and disposed of their meat. 608. The plaintiff had a complete cause of The defendants had no actual notice of plain- action when such conversion was committed, tiff's mortgage, and bought the hogs in the and did not lose this cause of action by failbelief that Coe was the owner, as he repre- ing at a later date to comply with the useless sented himself to be. The plaintiff on the form of recording a mortgage of property no 4th of March, 1905, shortly after he had longer in existence. learned of the removal of the hogs from San We think the construction of section 2965 Diego county, demanded possession of them urged by respondent is the proper one. The from defendants, and was informed that the section declares that, when mortgaged prophogs had been killed and sold. The chattel erty is removed from the county in which it mortgage has never been recorded in Los is situate, it is exempted from the operation Angeles county. The mortgaged property, of the mortgage, unless, within 30 days, the other than that here involved, has been sold, mortgagee does one of two things. To exleaving a deficiency in excess of the value of press the same idea in slightly different the hogs. The judgment is for such value, words, the property is exempted from the with interest and costs. The decision of the operation of the mortgage if the mortgagee case depends upon the construction of section does not, within 30 days, record the mortgage 2965 of the Civil Code, reading as follows: in the county in which the property is re"When personal property mortgaged is there- inoved, or take possession of it. By necesafter by the mortgagor removed from the sa implication from the language used, the county in which it is situated, it is, except | property is not exempted if, within 30 days, as between the parties to the mortgage, ex- the mortgagee does do either of the prescribempted from the operation thereof, unless ei- ed acts. Whether or not he will do one of ther: (1) The mortgagee, within thirty days them cannot be determined until the 30 days after such removal, causes the mortgage to shall expire. In the interval the condition be recorded in the county to which the prop- upon which the statute has made the loss of erty has been removed; or. (2) the mortga- his lien depend has not taken place. Until gee, within thirty days after such removal, he has failed to do what is required of him takes possession of the property, as prescrib- for the preservation of his mortgageand he ed in the next section.” So long as the prop- cannot be said to have so failed until thirty erty remained in the county of San Diego, days after the removal of the property-the the mortgage was a valid lien. What was mortgage is unaffected by the removal, and the effect of removal to another county? the exemption declared by section 2965 has The appellants contend that, by the removal, not arisen. But, apart from the mere questhe property was at once relieved of the lien tion of grammatical interpretation, the posiof the mortgage, and that such lien could tion of respondent is supported by considagain attach to the property only upon the erations of reason and justice. The lender, recording of the mortgage in the new county

who has taken a mortgage of personal prop(or the taking of possession by the mortga- erty, and has had it executed and recorded gee) within 30 days. Until such recording, as required by law, has acquired a right of the mortgagor was in a position to convey a property. The statute evidently contemplates clear title to a bona fide purchaser. The re- that this right may be preserved, notwithspondents, on the other hand, take the posi- standing a removal to another county of the tion that the mortgage remains a valid and mortgaged chattels. If it be held that, upon subsisting lien, of which the original record removal, the mortgage is at once suspended is constructive notice to all the world, not- until there is a new record of the mortgage, withstanding the removal of the property, or a seizure, and that a purchaser in the inbut that, unless one of the two steps specified terim takes free of the mortgage, the mortby section 2905 is taken during the thirty ga gee loses his lien, notwithstanding the fact days after reinoval, the validity of the mort- that he may, immediately upon learning of gage ceases, except as between the parties, the removal, and within the 30 days allowed at the expiration of such 30 days. In apply. him, record his mortgage in the new county. ing the section in question to the facts of Such construction would work a practical the present case, it is immaterial, under ei- forfeiture as against one who had not been ther construction, that the mortg:ige was guilty of the slightest want of care or viginever, in fact, recorded in Los Angeles coun- lance-a result that should not be held to ty; for, if the mortgage was suspended by follow unless it is demanded by the plain letthe removal, and was not in force when the ter of the statute. In the absence of any defendants purchased the hogs, a good title specific statutory provision regarding the repassed by such purchase, and nothing was moval of mortgaged property, the record of a

chattel mortgage in the town or county where it is required to be originally filed for record is held to be constructive notice to all the world, and the mortgage is valid, even though the property may be removed to another town or county, or even to another state. Pease v. Odenkirchen, 42 Conn. 415; Barrows v. Turner, 50 Me. 127; Brigham v. Weaver, 6 Cush. (Mass.) 398; Whitney v. Heywood, 6 Cush. (Mass.) 82; Hoit v. Remick, 11 N. H. 285; Hicks v. Williams, 17 Barb. (N. Y.) 523; Kanaga v. Taylor, 7 Ohio St. 134; Greenville Nat. Bank v. Evans, 60 Pac. 219, 9 Okl. 353; Hornthal v. Burwell, 13 S. E. 721, 109 N. C. 10, 13 L. R. A. 740, 26 Am. St. Rep. 556; Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675. It is said in Hoit v. Remick, supra:

“The object of the statute was to give publicity to such conveyances, and to provide sources of information common to all persons, in order to enable purchasers and creditors and all others to determine with some degree of facility, convenience and certainty the question of title to property, which they may be interested to know, while, at the same time, it was not among the purposes of the act to subject the bona fide mortgagee, who is, of course, a creditor, to the inconvenience, if not impracticability, of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests, if he were obliged to record his mortgage in every town into which the mortgagor might see fit to remove with the property to reside." Our statute, it is true, goes further than those considered in the foregoing cases. It does require the mortgagee to exercise some degree of vigilance in order to protect his right in case of removal of the property ; but it allows him 30 days after such removal in which to perform the acts essential to the continuance of the mortgage lien. During those 30 days he cannot be said to have fallen short of full compliance with every duty imposed upon him by the law, and should not therefore be held to have lost any of the rights vested in him by the due execution and registration of his mortgage.

The appellants urge that the rule invoked by respondent would work a hardship upon innocent purchasers of mortgaged property in a county in which no record of the mortgage exists. Such hardship may result, but it is no more burdensome than the injury which would be sustained by a bona fide mortgagee who, on the contrary construction, would be held to have lost his lien by a surreptitious removal and sale of the property before he could know of the removal, and before the lapse of the time allowed him by the statute within which to protect his righ in the county to which the property had been removed. The question is purely one of legislative policy, and we think the policy intended to be declared in section 2965 is the same as that adopted in other states which require a mortgage to be re-recorded after

removal of the property. While the language of the statutes in those states is some what different from that of the section in question, it is instructive to note that such statutes are held to declare an intention that the mortgage shall remain in force after removal of the property and until the expiration of the time allowed for re-registration. Wilkinson v. King, 8 South. 189, 81 Ala. 156; Malone v. Bedsole (Ala.) 9 South. 520, 93 Ala. 41; Ames Iron Works v. Chinn, 38 S. W. 247, 15 Tex. Civ. App. 88. The cases cited by appellants do not conflict with these views. In Fassett v. Wise, 115 Cal. 316, 47 Pac. 47, 1095, 36 L, R. A. 505, the mortgage had not been recorded, before removal of the property, so as to make it valid as against creditors or subsequent purchasers. The prevailing opinion of Temple, J., expressly points out that section 2965 is not applicable to such a case as the one there presented. So far as there is any discussion of section 2965 in Fassett v. Wise, both the majority and the dissenting opinions tend to sustain the views here expressed. Ruggles v. Cannedy, 127 Cal. 290, 53 Pac. 911, 59 Pac. 827, 46 L. R. A. 371, merely declares that a chattel mortgage must be recorded promptly in order to make it valid as against certain creditors of the mortgagor. The case throws no light on the question here presented.

We are satisfied that the court below properly entered judgment for the plaintiff upon the facts found.

The judgment is affirmed.


(151 Cal. 550) In re CORNELIUS' ESTATE. (Sac. 1,555.) (Supreme Court of California. July 24, 1907.) 1. ESCROWS-DELIVERY-INTENT.

A finding of intent to make an absolute delivery is authorized, where one, being ill and expecting to die, presently signed and acknowledged a deed to her stepsons of her interest in her deceased husband's estate, and delivered it to a third person, telling him to keep it till after her death, and then to give it to said sons. 2. SAME-RETURN OF DEED.

Where one being ill and expecting to die presently signed and acknowledged a deed to her stepsons, and delivered to B., a third person, telling him to keep it till after her death, and then to give it to said sons, her intent being to make an absolute delivery to B., the deed became an executed conveyance on the delivery to B., so that the subsequent return thereof to the grantor by B., without the consent or knowledge of the grantees, and its destruction by the grantor, did not destroy its effect as a conveyance.

[Ed. Note.-For cases in point, see Cent. Dig., vol. 19, Escrows, $ 10.)

Department 1. Appeal from Superior Court, Sacramento County ; Peter J. Shields, Judge.

In the matter of the estate of H. P. Cor. nelius, deceased. From an order of distribu

tion, s. B. Smith, administrator of Margaret their interest thereby, without their consent. Cornelius, deceased, appeals. Affirmed.

The doctrine applicable to the case is further S. Solomon Ilall, for appellant. Hopkins

illustrated by the decisions in Ruiz v. Dow, & Hinsdale, for respondent.

113 (al. 1990, 45 Par. S07: Wittenbroek v.

('ass, 110 ('al. 1, 42 Pac. 300; Keyes v. Meyers, SILAW, J. Appeal from an order distribu

147 (al. 702, 82 Pac. 304. The cases of ting the estate of II. P. Cornelius, deceased.

Standiford v. Standiford, 97 Mo. 231, 10 S. The question presented concerns only the dis

W. 836, 3 L. R. A. 299, and Williams v. Lathtribution of the interest in the estate which,

am, 113 Mo. 16), 20 S. W. 99, are to the same upon the death of the deceased, descended to

effect as Bury v. Young. There are inconhis widow, Margaret Cornelius.

sistent cases in other states, but the rule in After the death of her husband she signed

this state is settled by the decisions above and acknowledged a deed purporting to con

cited. vey to her two stepsons, Robert P. Cornelius

The part of the decree of distribution apand John B. Cornelius, her interest in said

pealed from is affirmed. estate, and delivered it to Charles V. Bartholomew, telling him at the time to keep it until

We concur: SLOSS, J.; ANGELLOTTI, J. after her death and then to give it to the grantees. She was at that time very ill and

(151 Cal. 488) expecting to die presently. She recovered

DOEIILI V. PHILLIPS. from that illness and lived more than three

(L. A. 1,893.) years thereafter. Two years and six months (Supreme Court of California. July 8, 1907.) thereafter, Bartholomew, of his own volition 1. JUDGMENTS-DORMAXT JUDGMENTS-REVIVand without any request from her, and with- AL. out the knowledge or consent of the grantees,

Code Civ. Proc. 68J, as amended by St. delivered the deed to her, and some four

189), p. 38, c. 33, providing that judgments

may be enforced after the lapse of five years months thereafter she destroyed it. The court from entry by leave of court, on motion, or by finds from the evidence that at the time of judgment for that purpose, founded on supplethe delivery to Bartholomew Margaret Cor

mentary pleadings, but that nothing in the sec

tion should be construed to revive a judgment nelius parted with all dominion and control

for the recovery of money which was barred by over the deed and reserved no right to re- limitations prior to the passage of the act, call or alter it. The intent of the grantor to

whether technically retroactive or not, was ap

plicable to all judgments existing at the time make an absolute delivery of the deed to

the amendment was passed, which were not Bartholomew is a question of fact, to be de- then barred by limitation. cided largely by inference from the circum- 2. EXECUTION-LEAVE TO ISSUE-XOTICE. stances proved to have occurred at the time. Notice of the time and place of the hearing

of an application for leave to have an execution The decision of the court below in regard to

issued on a judgment more than five years after this fact is, under the evidence in the case, the entry thereof, as authorized by Code Civ. conclusive.

Proc. $ 03.), as amended by St. 1893, p. 38, c. Upon the facts stated the deeil became an

:3, is not required to be given to the judgment

debtor. executed conveyance upon the delivery to

3. SAVE-LIMITATIONS. Bartholomew for the grantees. He was there

An application for leave to have an execuafter holding for them as their trustee, and tion issued on a judgment inore than five years for the grantor as her trustee. IIis duty

after the entry thereof, as authorized by Code

('iv. l'roc. $ 68.), as amended by St. 189.), P. to her was to withhold it from the grantees

:38, c. 33, is not an action or special proceedduring her lifetime, and thus preserve to her, ing of a civil nature, but a motion in the origin effect, a life estate in the property. His

inal action to which the general statutes of

limitations do not apply. duty to the grantees was to bold the (leed in

[Ed. Yote.-For cases in point, see Cent. Dig. his possession until her death, and then cle

vol. 21, Execution, $ 101.) liver it to them. Ilis delivery of the deed

4. ('OxSTITUTIONAL LAW OBLIGATION OF to the grantor without their consent dill not

COXTRACT-LIMITATIOxs. affect the validity of the deel, nor deprive A judgment debtor having no vested right them of their prospective estate in the prop- period tixed has completely run and barred the

to a particular statute of limitation until the erty. Civ. Code, $$ 1057, 10.38. The principles

action, Code Civ. Proc. $ 685, as amended by St. governing this case are fully discusserl and 1893, p. 38, c. 33, authorizing the enforcement deridel in Bury v. Young. 98 Cal. 146, 33 of judgments after the expiration of five years Pac: 338, 3.3 Am. St. Rep. 186. The grantor in from the entry thereof, was not invalid as im

pairing the obligation of contracts. that case endeavored to defeat the grant by

(Ed. Vote.-For cases in point, see Cent. Dig. an unsuccessful attempt to regain possession vol. 10, Constitutional Law, $$ 506, 507.) of the deed by devising the property to an

5. EXECUTIOx-LEAVE TO ISSUE-APPLICATION other. This difference in the facts does not -LACIES-DISCRETION. distinguish that case from the present one.

Where a judgment recovered for money Ir, after such a conveyance is so delivered

loaned the defendant had never been satisfied,

and no reason was shown why in equity and that the grantor has no dominion or control good conscience defendant should not be compelover it or right to recall it, he gains posses- led to pay, it was not an abuse of the trial sion of it and wrongfully destroys it, there

court's discretion to authorize the issuance of

an execution thereon, under Code Civ. l'roc. can be no doubt that he cannot profit by his

$ 08.), as amended by St. 189.), p. 38, c. 33, auwrongful act, nor deprive the grantees of : ihorizing the enforcement of judgments after 5

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