office of the register of deeds. A creditor within the meaning of this statute, is one who becomes such after the

Duty of

mortgage was executed.-Union Nat'l
Bank v. Oium, 3 N. D. 193, 44 Am. St.
Rep. 533, 54 N. W. 1034.

Recorder. Form of Book. Section 2821. Upon the receipt of any such inWhen Need Not be Filed: strument, the recorder shall indorse on the back the time of receiving it, and shall file the same in his office, to be kept there for the inspection of all persons interested, and the recorder shall keep a book in which shall be entered a minute of all mortgages of personal property; such book shall be ruled off into separate columns, with heads as follows: "Time of reception," "Name of mortgagor." "Date of instrument." "Amount secured," "When due." "Property mortgaged," "Before whom sworn to and acknowledged," and "Remarks."

The proper entry shall be made under each of such heads, and the recorder shall receive the sum of fifty cents and no more, for filing any such mortgage, which amount he may demand before filing any such mortgage: Provided. That property in transit from the possession of the "mortgagee" to the county in which the "mortgagor" resides, or to a location for use shall, for a reasonable length of time for such transportation, be considered as located in the county to which the same is being removed: Provided, further. That if the mortgagee receive and retain actual possession of the property mortgaged, he may omit the filing of his mortgage during the continuance of such actual possession.

1887 R. S. Sec. 3387, amended 1899, 5th Ses. p. 121; 1891, 1st Ses. p. 181.

When a chattel mortgage is executed in good faith in favor of a bona fide creditor, his assent thereto will be pre

sumed from the time of its registra tion, although it was executed and recorded without his knowledge.-First Nat'l. Bank v. Ridenour, 46 Kan. 718, 26 Am. St. Rep. 167, 27 Pac. 150.

Section 2822. Removal of Property from County, Effect: When mortgaged personal property is thereafter removed from the county wherein it was situated at the time of the execution of the mortgage by the written consent of the mortgagee, it is, except as between the parties to the mortgage, exempt from the operations thereof, unless, either, first, the mortgagee within ten days after such removal cause the mortgage to be filed in the county to which the property has been removed, or second, the mortgagee within ten days after such removal take possession of the mortgaged property.

1887 R. S. Sec. 3388; 1885, 13th Ses. p. 74.

Extraterritorial

mortgage record:

chattel
force of
Ord Nat'l. Bank 1.

Massey (Kan.), 30 Pac. 124, 17 L. R. A. 127 and note: Handley v. Harris. 48 Kan. 606, 30 Am. St. Rep. 322, 29 Pac. 1145.

Section 2823. Mortgaged Property may be Attached how: All mortgaged personal property may be attached at the suit of any creditor of the mortgagor: such creditor, however, must pay or tender to the mortgagee, the amount due him on such mortgage before the officer making such attachment is entitled to the actual possession of such property. When the property thus attached and redeemed by the creditor is sold by the officer under due legal proceedings, he must:

287

First. Pay to such creditor the amount advanced by him to pay the mortgage with lawful interest thereon;

Second. Pay all costs appertaining to the judgment, execution and sale;

Third. Pay the judgment creditor the amount of his judgment, and the surplus, if any, to the judgment debtor; if the creditor of the mortgagor prefer he may cause to be attached the equity of redemption of the mortgagor; such attachment is made by serving upon the mortgagor and the mortgagee a copy of the writ of attachment, together with a notice signed by the officer that the interest of the mortgagor in such property is attached when the sale of such equity is made on execution obtained by such attaching creditor, the proceeds must be applied to the payment of the costs and the satisfaction of the judgment, and the remainder, if any, paid to the judgment debtor. The purchaser at such sale is entitled to the possession of the property, subject, however, to the rights of the mortgagee.

1887 R. S. Sec. 3389; 1885, 13th Ses. p. 75.

CHATTEL

MORTGAGES:

When

a creditor seeks to subject the property of his debtor to the payment of his claim, upon which property there exists a chattel mortgage, and the creditor, to avail himself of the remedy provided by this section, pays to the mortgagee the amount of such mortgage, such payment by the credit r discharges the mortgage and the lien thereunder, and the creditor can not thereafter enforce the mortgage lien.

-Baunmgartner v. Vollmer (Idaho), 49
Pac. 729.

ATTACHMENT, ATTACKING VA-
LIDITY OF CHATTEL MORTGAGE:
A creditor has the right to attack the
validity of a chattel mortgage by at-
taching property described therein, giv-
ing indemnifying bond to sheriff, and
selling the property.
creditor do this, however, at the peril
The sheriff and
of being obliged to pay all damages to
the mortgagee, if the mortgage is held
good.-McConnell v. Langdon, 2 Idah.
892, 28 Pac. 403.

Section 2824. Mortgage, how Foreclosed: gage of personal property, when the debt to secure which the mortgage was given is due, may be foreclosed by notice and sale as hereAny mortinafter provided, or it may be foreclosed by action in the district court having jurisdiction in the county in which the property is situated.

1887 R. S. Sec. 3390; 1885, 13th Ses. p. 75.

Affidavit and notice for the foreclosure of a chattel mortgage, under this and subsequent sections, are held to be process, and as such will protect the sheriff in the execution thereof, the same as he is protected in the service of an ordinary execution in case of judgment. Upon the receipt of such process, the sheriff must proceed to execute the same, and having levied upon the goods described therein, he must proceed to give notice and sell the same, as provided in the statute, not withstanding an attachment, or execution of a judgment creditor may be placed in his hands after the said af fidavit was levied upon the goods.

The sheriff is not called upon to determine whether the mortgage which the affidavit and notice upon issued is a valid mortgage or not.-wer Blumauer-Frank Drug Co. stetter, Idaho, 43 Pac. 575. V. Bran

FORECLOSURE

OF CHATTEL.

MORTGAGE, ACTION
CIENCY:
FOR DEFI-
The plaintiff held a chattel
mortgage given by defendant to secure
the payment of three promissory notes
for purchase price of certain personal
property. Default having been made
by defendant in the conditions of mort-
gage, plaintiff foreclosed by notice and
sale, as provided by statute.
turn of the sheriff showed a deficiency
The re-
of some $900, to
amount
recover which
plaintiff brings this action..
To a complaint setting forth all the de-
tails of the transaction, including th
foreclosure, sale and return of
sheriff, showing deficiency in proper
the
form, the defendant enters general de-
which is sustained by the
Held. that the
properly brought and that the action
action was
of the district court in sustaining the
demurrer to the complaint was error.
-Advance Thresher Co. v. Whiteside.
2 Idaho, 806, 26 Pac. 660. A mortgage

murrer, court.

given to secure the payment of a note is a mere incident to the note, and its foreclosure is not barred so long as an

action upon the note is not barred.-
Moulton v. Williams (Idaho), 55 Pac.
1019; Rein v. Callaway, 65 Pac. 63.

Section 2825. Foreclosure by Notice and Sale, Affidavit: In proceeding to foreclose by notice and sale, the mortgagee, his agent or attorney, must make an affidavit stating the date of the mortgage, the names of the parties thereto, a full description of the property mortgaged, and the amount due thereon. Such affidavit must be placed in the hands of the sheriff, together with a notice signed by the mortgagee, his agent or attorney, requiring such officer to take the mortgaged property into his possession and sell the same.

1887 R. S. Sec. 3391; 1885 13th Ses. p. 75.

Section 2826. Affidavit, how and on Whom Served: The affidavit must be personally served upon the mortgagor, or other At the person having possession of the mortgaged property, in the same manner as is provided by law for the service of a summons. time of such service of the affidavit, the officer must also serve a notice signed by himself, setting forth a full description of the property. the amount claimed to be due by the mortgagee, and the time and place of sale; Provided, however, That if the mortgagor or other person interested, cannot be found within the county wherein the mortgage is being foreclosed, and has no agent therein known to the officer, the general notice of sale directed in the next Section is sufficient service upon all parties interested.

1887 R. S. Sec. 3392; 1885, 13th Ses. p. 75.

Section 2827. Notice of Sale, how Given:

The officer

must take the property into his possession and give notice of sale in the same manner and for the same length of time as is required in cases of the sale of like property on execution, and the sale must be ce: ducted in the same manner.

1887 R. S. Sec. 3393: 1885, 13th Ses. p. 76.

Section 2828. What Purchaser Takes. Bill of Sale: The purchaser at such sale takes all the interest which the mortgagor had in the mortgaged property at the time of the execution of the mortgage, an! the officer selling must execute to him a bill of sale of the property, which must set forth the date of the mortgage, the names of the parties thereto, the date of sale, a description of the property, and the amount paid therefor.

1887 R. S. Sec. 3394; 1885, 13th Ses. p. 76.

Section 2829. Return of Officer: The officer must make return upon the affidavit hereinbefore mentioned of all his proceedngs, and must transmit the same by mail or otherwise, to the clerk of the district court having jurisdiction in the county in which the sale was made, and the clerk must file such return in his office. 1887 R. S. Sec. 3395; 1885, 13th Ses. p. 76.

Section 2830.

Right to Foreclose may be Contested in District Court: The right of the mortgagee to foreclose, as well as the amount claimed to be due, may be contested in the dis

trist court by any person interested in so doing, for which purpose an injune may issue if necessary.

1887 R. S. Sec. 3396; 1885, 13th Ses. p. 76.

Section 2831. Sale of Mortgaged Property Void when: If the mortgagor of any property mortgaged in pursuance of the provisions of this Chapter, while such mortgage remains unsatisfied, in whole or in part, wilfully removes from the county or counties where the mortgage is recorded, destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part thereof, without consent of the holder of said mortgage, is guilty of larceny, and such sale or transfer is void.

Section cited in Blumauer-Frank Drug Co. v. Branstetter (Idaho), 43 Pac. 575.

1887 R. S. Sec. 3397; 1885, 13th Ses. p. 76; 1881, 11th Ses. p. 307.

Wilfully removing. destroying or concealing mortgaged property: penalty for: Penal Code, Sec. 4970.

WILFUL SALE BY MORTGAGOR,

ORAL CONSENT OF MORTGAGEE: Under this section making a wilful sale of property upon which there is a chattel mortgage, without the written consent of the mortgagor void, the evidence of the oral consent of the mortgagee to the sale is admissible s explaining the intent of the mortgagor in making such sale.-Mills v. Glennon, 2 Idaho, 95, 6 Pac. 116.

Section 2832. Time Allowed to File Mortgage: The mortgagee is allowed one day for every twenty miles or fraction thereof of the distance between his residence and the county recorder's office where such mortgage is to be filed, to conform to the provisions. of this Subdivision, before any subsequent incumbrance, sale or seizure, under any process. is effectual to hold or bind the mortgaged property.

1887 R. S. Sec. 3398; 1885, 13th Ses. p. 77.

PLEDGE.

Section 2833. When Contract Deemed a Pledge: Every contract by which the possession of personal property is transferred, as security only, is to be deemed a pledge.

A

1887 R. S. Sec. 3410. CONTRACTS OF PLEDGE: pledge is a bailment of goods by debtor to his creditor to be kept by him until his debt is discharged.-First National Bank v. Harkness, 42 W. Va. 156, 32 L. R. A. 408, 24 S. E. 548; Jackson v. Kincaid, 4 Okl. 554, 46 Pac. 587. The pledge of personal property passes to the pledgee merely the possession with a right of retainer until the debt or other acknowledgment is fulfilled for which the article pledged is given as security.-Lucketts v. Townsend, 3 Tex. 119, 49 Am. Dec. 723. An exhaustive note on this subject may be found on page 730. The assignment of an insurance policy on mortgaged premises as further security for the debt, is a pledge within that section of the Civil Code which provides that "Every contract by which the possession of personal property is transferred as security only is to be deemed ૧ pledge."-Savings Bank v. Middlekauff,

113 Cal. 463, 45 Pac. 840. A transfer of
personal property to trustees as se-
curity for a debt, under an agreement
that said trustees are to conduct th
business of the creditors through on→
of the latter as their agent for six
months, when, if found unprofitable.
they are to sell the goods, and provid-
ing that, when certain creditors shall
have received 50 per cent of their
claims, and all costs and expenses.
then the trust shall be terminated, and
the assets remaining shall be trans-
ferred to such creditors, is a pledge:
and if actual possession is not taken
by the trustees, it is invalid as against
the subsequent attachment
༡༩
the
property of a creditor of the pledgor.
-Lilienthal v. Ballou, 125 Cal. 183, 7
Pac. 897. Personal property may b›
pledged, mortgaged, hypothecated cr
placed in trust upon such terms and
conditions as parties may agree, and
courts of law will be governed by the
language of the contract in each par-

290

VALIDITY OF PLEDGE, ESSENTIALS

ticular case.-Hyatt v. Argenti, 3 Cal. 151.

A pledge is a CARE REQUIRED: bailment which is reciprocally beneficial to both parties, and therefore the law requires of the pledgee the exercise of ordinary diligence in the custody and care of the goods pledged, and he is responsible for ordinary negligence. -St. Losky v. Davidson, 6 Cal. 643 Damon v. Waldteufel, 99 Cal. 234, 33 Under this section of the Pac. 903. Civil Code, one having the possession of personal property as security for the debt due him, holds the same pledge, whether the title thereto has passesd to him or not.-Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369, The pledgee of corpor15 Pac. 773.

as a

ate stock, the contract of pledge be

ing silent on the subject, has not the
right by virtue of the pledge before the
maturity of the deed to have the stock
his
into
books
on the
transferred
name. Spreckles v. Nevada Bank, 113
Cal. 272, 45 Pac. 329.

care

NEGLIGENCE OF PLEDGEE, LIA-
BILITY: Where a party takes any
property as a pledge for the security
of a debt, which passes throgh his gros
of a debt, which through his gross
neglect is lost, he must bear the loss.
Where
and he must exercise ordinary
all cases.
and diligence in
there is no contract as to the disposi -
tion to be made of the pledge, and the
pledgor claims it is lost by neglect, he
must show the neglect, and that dari-
age resulted to him therefrom.-Mu»
phy v. Bartsch, 2 Idaho, 603, 23 Pac. $2.

Section 2834. Delivery and Possession Essential to Validity of Pledge: The lien of a pledge is dependent on possession, and no pledge is valid until the property pledged is delivered to the pledgee, or to a pledge holder, as hereafter prescribed.

1887 R. S. Sec. 3411.

VALIDITY AS AGAINST CREDIT

ORS: In order to constitute a valid
pledge there must be an immediate,
actual and continuous change of pos-
session of the property pledged, as
against creditors or subsequent pur
chasers and incumbrancers in good
faith.-Jackson v. Kincaid, 4 Okl. 554,
46 Pac. 587. The delivery may be made
to the creditor or to a third person to
hold possession for the creditor, anl
when delivered to a third person, he
must, of course, know of the trust, and
accept the obligation it imposes.--In re
46 L. Ann.
of Lanaux,
Succession
Bona
1036, 25 L. R. A. 577, 15 So. 708.
fides does not avail a pledgee in the
of possession,
of delivery
absence
either actual or contsructive.-Geilfuss
v. Corrigan, 95 Wis. 651, 37 L. R. A.
166, 70 N. W. 306. See same case as to
constructive delivery.

A change of possession is not effected
merely by having the former owner
manage the property as the servant,
agent or clerk of the pledgee; and this
is especially so where there was so
little outward sign of a change of
Public policy requires a
ownership.
real and substantial compliance with
the statute, and the failure should not
be condoned for the hardships of a
v. Ballou,
particular case.-Lilienthal
the
125 Cal. 183, 57 Pac. 897. After personal
the
property has been pledged and

possession
pledge holder, the mere fact that the
or without
pledgor, either with

thereof delivered

to

the

knowledge or consent of the pledgee,
for a time assists the pledge holder in

a

taking charge of the property, does not
necessarily render the holding as
of the
as to creditors
pledge void
pledgor. In such a case, there is a suf-
ficient delivery and continuous change
of possession to preserve the hen of
the pledgee.-Hilliker v. Kuhn, 71 Cal.
Where from its gitu-
214, 16 Pac. 707.
sus-
ation, personal property is not
ceptible of actual delivery, manual de-
livery is not essential to the creation of
a pledge; it may be created by a sym-
bolical delivery, as by the delivery of a
bill of parcels and a warehouse receipt.
-Conrad v. Fisher, 37 Mo. App. 352, S
L. R. A. 147: First National Bank v.
Harkness, 42 W. Va. 156, 32 L. R. A. 408,
24 S. E. 548. Goods delivered to a car.
rier for transporation to the pledgee,
under a bill of lading expressly naning
him as consignee is a valid delivery of
the pledge, which, in the absence of
in
fraud, passes title, as against an at-
the goods
levied on
tachment
transit.-Toms v. Whitmore (Wyo.), 41
Pac. 56.

WHO MAY QUESTION VALIDITY OF TRANSFER: The deferdant, as sheriff, levied upon the property by virtue of attachment at the suit of one La Borge, against K., in September of the year following the transfer of the property. Held, that the property was not subject to levy for the debts of K. A creditor desiring to contest the validity of a sale must prove a debt or judgment, if it has been reduced to a judgment, before he can be permitted to question the validity of the transfer of property as a pledge.-Murphy v. Braase, Sheriff (Idaho), 32 Pac. 208.