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Section 2835. Increase of Property Pledged: increase of property pledged is pledged with the property.
1887 R. S. Sec. 3412.
Section 2836. Lienor May Pledge Property: One who has a lien upon property may pledge it to the extent of his lien.
1887 R. S. Sec. 3413.
Section 2837. When Owner Cannot Defeat Pledge: One who has allowed another to assume the apparent ownership of property for the purpose of making any transfer of it, cannot set up his own title to defeat a pledge of the property made by the other, to a pledgee who received the property in good faith, in the ordinary course of business and for value. 1887 R. S. Sec. 3414.
goods by such agent as security fo" RIGHTS
BAILOR AS TO a loan is valid as against the real THIRD PERSONS: This section af- owner, if the pledgee acted in good fords no protection to the pledgee of faith and after notice that the pledgor property received from one with whom was not the owner.-Amann V. LOWit was left for safe keeping.--Shafer v. ell, 66 Cal. 306, 5 Pac. 363. A pledge of Lacy, 121 Cal. 574, 54 Pac. 72. Where the property of his principal made by
transferred and endorsed bank & factor having its possession and constock in blank, and delivered the samo trol, as security for his individual debt, to his agent, with power to negotiate is good as against the principal, if the and pledge the same, he cannot recover pledgee acted in the due course of for the conversion thereof by the business without notice of the actual pledgee of the agent, who took it in ownership.-Wisp v. Hazard, 66 ('al. good faith for value, without refund- 459, 6 Pac. 91. Where goods are deing or offering to refund the amount livered to one merely that he may show advanced by the pledgee.--Brittan V. them to a possible purchaser, one to Oakland Bank of Savings, 124 Cal. 282, whom he pledges them for mony 57 Pac. 84; Ambrose v. Eyans, 66 Cal. which he appropriates for himself his 74, 4 Pac. 960; Arnold v. Johnson, 66 no title as against the rightful owne: (al. 402, 5 Pac. 796. Where goods --Rumpf v. Barto, 10 Wash, 382, 38 are deposited in a warehouse in the Pac. 1129; Thompson v. Toland, 48 (al. name of an agent, who is apparently 99. the owner thereof, a pledge of the
Section 2838. Third Person as Pledge Holder: A pledgor and a pledgee may agree on a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge holder.
1887 R. S. Sec. 3415.
Section 2839. Pledge Holder Must Enforce Rights of Pledgee: A pledge holder must enforce all the rights of the pledgte, unless authorized by him to waive them. 1887 R. S. Sec. 3416.
and if he recovers in such action, ani ACTION BY PLEDGEE FOR CON- the wrong-doer satisfies the judgmeni, VERSION OF PLEDGE: The pledgee le thereby acquires title to the pledge. as against a stranger to the pledgor ---Thompson v. Toland. 48 Cal. 99. Sea and wrong-doer, who has convertel also Barnhart v. Fulkerth, 73 Cal. 526, the pledge, may recover its full value; 15 Pac. 89; Hawley Brothers Hardware for he is answerable
to the Co. v. Brownstone, 123 ('al. €43, 56 Pac. pledgor for any surplus in his hands, 468.
Section 2840. Credit by Misrepresentation; Rights ot Pledgee: Where a debtor has obtained credit or an extention of time by a fraudulent misrepresentation of the value of property pledged by pr for him, the creditor may slemand a further pledge to
correspond with the value represented; and in default thereof may recover his debt immediately, though it be not actually due.
1887 R. S. Sec. 3417.
Section 2841. Pledgee May Sell Pledge, When: When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of property pledged, subject to the rules and exceptions hereinafter prescribed. 1887 R. S. Sec. 3418.
Ehrlich v. Ewald, 66 Cal. 97, 4 Pac. 1062, REMEDIES OF THE PLEDGEE: the court says: "We find nothing A pledgee holding pledge as collateral which would prevent a pledgee from security may after debt falls due, elect having his action to recover the deht, one of three remedies. 1. Proceed per- without first exhausting the subject vi sonally against pledgor for debts the pledge.” The common law right o: without sale of pledge. 2. File a bill the pledgee to sell the pledge upon th: in chancery for a judicial sale under a default of the pledgor, and thereafter regular decree of foreclosure. 3. Sell bring his action for any balance rethe pledge without judicial process maining unsatisfied, is wholly unafupon reasonable notice to debtor to re. fected by Sec. 3331 of the Code of Cik. deem.-Robinsor. v. Hurley, 11 Iowa, Proc.--Mauge v. Heringhi, 26 Cal. 577. 410, 79 Am. Dec. 497. To the same f- TENDER AND DEMAND: The lien fect is Sonoma Valley Bank v. Hill, 59 of the pledgee is extinguished when it Cal. 107, in which the court says: tender of the amount due on the debt "Now it is well settled that in the ab- is maie according to law and refused sence of a statute or stipulation to the by the pledgee. Upon such tender becontrary, the possession of the pledge ing made and refused, when, on property does not suspend the right oí after such tender, a demand is made the pledgee to proceed personaliy for the pledge, which is refused, the against the pledgor for his debt after pledgee is guilty of conversion.-selling the pledge, for the reason that Loughborough v. McNevin, 74 Cal. 250, the security is only collateral." In 14 Pac. 369, 15 Pac. 773.
Section 2842. Pledgee Must Demand Performance Before Sale: Before property pledged may be sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debtor, if the debtor can be found. 1887 R. S. Sec. 3419.
pledge.--Dewey y. Bowman, 8 Cal. 143: DEMAND AND NOTICE: A pledge-> Gay v. Moss, 34 Cal. 125. Where the has no right to sell until after demand pledgee sells the absolute property in and notice; and if he sells without de- the pledge to a bona fide purchaser. mand and notice, to a party having the purchaser is entitled to retain the full knowledge of his title, no absolute pledge until the pledgor discharges th title passes and the property remains debt for which it was pledged.-Wi!. in the hands of the purchaser as liams v. Ashe, 111 (al. 180, 43 Pac. 593.
Section 2843. Notice of Sale to Pledgor Must be Actual: A plecgee must give actual notice to the pledgor of the time and place at which the propertv pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to attend. 1887 R. S. Sec. 3420.
ment of the debt, and must be at pubNOTICE OF SALE: A pledgee has lic auction after due notice to th. no right to sell until after demand and pledgor or owner.-Morgan v. Dod, 3 notice, and if he sells without demand Colo. 551. Where no time is fixed for and notice to party having full the redemption of a pledge. a privatknowledge of his title, no absolute title sale thereof, made without demand or passes, and the property remains in the pledgor or notice to him of th. the hands of the purchaser
iime and place of sale, is void.-Mofpledgor.--Dewey v. Bowman, 8 Cal. 145. fat v. Williams, 5 Colo. App. 184, 36 A pledgee can sell the property only, Pac. 914. If a sale of mining stock, and such sale must be for the purpose pledged as security for money, is made of applying the proceeds to the pay- without notifying the pledgor to make
his margin good, and without sufficient promised to pay the balance claimed notice of the time and place, still, it by the pledgee, he by these acts ratithe pledgor knew of the time and place fies the sale.Child V. Hugg, 41 Cal. of sale and made no objection, and 519. after the sale, approved of it anl
Section 2844. Pledgor May Waive Notice of Sale: Notice of sale may be waived by a pledgor at any time, but is not waived by a mere waiver of demand of performance. 1887 R. S. Sec. 3421.
the sale. The defendant had expressiy See Williams v. Hahn, 113 Cal. 475, waived all notice to himself and had 45 Pac. 815, in which it was held under authorized the plaintiff to sell wine it the circumstances that the plaintiff private sale. was not required to give any notice of
Section 2845. Positive Refusal to Perform is Waiver of Demand: A debtor or pledgor waives a demand of performance as a condition precedent to a sale of the property pledged, by a positive refusal to perform after performance is due; but cannot waive it in any other manner except by contract.
1887 R. S. Sec. 3422.
Section 2846. Sale Must be by Public Auction: The sale by a pledgee of property pledged, must be made by public auction in the manner and upon the notice required upon sale of personal property under execution; and must be for the highest obtainable price. 1887 R. S. Sec. 3423.
for the highest obtainable price.-Ben. Sale of personal property under ex- del v. Crystal Ice Co. 82 Cal. 199, 22 ecution: Code of Civil Proc. Sec. 3543 Pac. 1112. The question whether a sale et seq.
of mining stock made in the board of AUCTION SALE: The sale by il brokers is not a sale at public auction pledgee of property pledged must be such as the pledgee is authorized to made by public auction, in the manner make upon default being made by the and upon notice to the public, usual it pler'gor, is discussed but not decided the place of sale in respect to auction in Child v. Hugg, 41 (al. 519. sales of similar property, and must be Section 2847. Evidences of Debt Cannot be Sold:
; Exceptions: A pledgee cannot sell any evidence of debt pledged to him except the obligations of governments, states, territories, counties or corporations; but he may collect the same when due. 1887 R. S. Sec, 3424.
Magee, 114 Cal. 126, 45 Pac. 1068. RIGHT OF PLEDGEE RESPECT- creditor to whom claims are transING EVIDENCES OF DEBT: A ferred as collateral security is bound pledgee of mortgaged notes as collat- to use ordinary diligence in collecting eral security. under assignment them, and is liable for loss resulting which gives him the right, on default, in his failure to do so; but if the trangto realize on the same by sale, but does fer merely authorizes such creditor to not restrict him to that method, may receive the proceeds of the claims either sell them or under this section when collected, and apply them to the of the Civil Code, he may realize on payment of his debt, he is not bound :) them by foreclosing the mortgage se- prosecute their collection.- Miller curing them, which, incidentally witn Gettysburg Bank, 8 Watts, 192, 34 Am. them passed into pledge.-McArthur v. Dec. 449 and note 451.
Section 2848. Pledgor May Require Pledge to be Sold, When: Whenever property pledged can be sold for a price sufficient to satisfy the claim of the pledgee, the pledgor may require it to be sold and its proceeds to be applied to such satisfaction when due.
1887 R. S. Sec. 3425.
Section 2849. Proceeds of Sale, Disposition of: \fier a pledgee has lawfully sold property pledged, or otherwise collected its proceeds, he may deduct therefrom the amount due under the principal obligation, and the necessary expenses of sale and collection, and must pay the surplus to the pledgor on demand. 1887 R. S. Sec. 3426.
and pay over all the income, profits Where the relation of pledgor and and advantages derived from the bailpledgee exists, if the debt is paid, it is înent.-Hunsaker v. Sturgis, 29 Cal. the duty of the pledgee to acount for 142.
Section 2850. Property Sold Before Debt is Due, What May be Retained: When property pledged is sold before the claim of the pledgee is due, he may retain out of the proceeds all that can possibly become due under his claim, until it becomes due. 1887 R. S. Sec. 3427.
Section 2851. Pledgee or Pledge Holder Cannot Purchase: A pledgee, or pledge holder, cannot purchase the property pledged, except by direct dealing with the pledgor. 1887 R. S. Sec. 3428.
wards be restricted; nor can an elecPLEDGEE CANNOT PURCHASE: tion to disaffirm the sale be restricte i If the property is sold by the pledgee or renewed at a later date for the in satisfaction of his demand, he can- purpose of increasing damages.-Hill not become the purchaser at his own v. Fingan, 77 Cal. 267, 11 Am. St. Rep. sale.-Wright v. Ross, 36 Cal. 414. But
279, 19 Pac. 494. A sale of pledged the pledgor may consent to or ratify a property by the pledgee to himself, not purchase at public auction, by the disaffirmed by the pledgor, does not pledgee of the property pledged.-Hill affect the pledgee's relation to the V. Finigan, 62 Cal. 426. A sufficient property.--Hyams Bamberger, election by the pledgor to treat a pur- Utah, 3, 36 Pac. 202. chase of the pledgee by the pledgor at Ratification
made by his own sale valid cannot after- pledgee: See Child v. Hugg, 41 Cal. 519.
Section 2852. Pledgee May Foreclose: Instead of selling property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the direction of a competent court; and in that case may be authorized by the court to purchase at the sale. 1887 R. S. Sec. 3429.
sale of a negotiable instrument in satCOURTS OF EQUITY, POWER OF isfaction of the debt for which it is OVER THE PLEDGE OF NEGOTIA- held in pledge. Whether it has suh BLE INSTRUMENT: Under special power under ordinary circumstances: circumstances, a court of equity has query? Donohue v. Gamble, 38 Cal.
to decree the foreclosure and 340.
Section 2853. Judgments of the United States Courts, how Made Liens: Judgments in the district or circuit courts of the United States, if rendered in this State, may be made liens upon the real estate owned by the defendant, and also upon all real estate he
1899, 5th Ses. p. 80, Sec. 1; 1891, 1st and temporary injunction Ses. p. 119.
granted against the execution on the AT COMMON LAW: In the absence ground that W. held the land in trust of statutory provision, a judgment is for his brother, who intended to use it not a lien upon the debtor's land.- as a homestead. The injunction was Thompson v. Avery, 11 Utah, 214, 39 made permanent, the court holding Pac. 829.
that, while it was provided by statute EXTENT OF THE LIEN; A judg- that the right of an incumbrancer for ment lien attaches merely to the rights value of real property shall not be preof the judgment debtor in the land and judiced by an implied or resulting nothing more.-Smith V. Savage, 3 trust of which there was no notice, the Kan. App. 556, 43 Pac. 847.
judgment in this case not having been WHEN THE LIEN ATTACHES:
obtained and not subsisting upon the Under the Montana statute, it is pro
land by reason of any advantage or vided that after filing a judgment roll,
value rendered to the particular propthe clerk should make the proper en
erty in question, and the land being tries on the docket and that from the
the homestead of the defendant, the time a judgment is docketed, it chall
judgment is not an “incumbrance oj become a lien, and it was held there. the real property for value;" that the under that a judgment was not a lien
land would be subjected to its judguntil docketed, regardless of when it ment.---Baird v. Williams, 4 Okl. 173. was rendered. -Sklower
44 Pac. 217. (Mont.), 47 Pac. 901.
PROPERTY PREVIOUSLY CONNOT AFFECTED BY DEATH OR
VEYED: Held, under a similar statPRESENTATION OF CLAIM: The ute, that its provisions do not extend jien secured on the property of a judg
the lien to property previously conment debtor during his life, by docket
veyed by the debtor to his wife by a ing the judgment as provided by stat
deed valid and binding between the ute, is not affected by his death.-Mo:
parties.-Sawtelle V. Weymouth, 14 ton v. Adams, 124 Cal. 229, 56 Pac. 1038.
Wash. 21, 43 Pac. 1101. Moreover the presentation by the ad- PRIORITIES AS
BETWEEN ministrator of a judgment which is a LIENS AND OTHER INTERESTS: lien on the property of the judgment In Kansas, an unrecorded deed takas debtor, as a claim against his estate, precdence over a judgment lien acdoes not destroy the lien.-Id.
quired after the execution and delivery MODIFICATION OF JUDGMENT: of the deed and before the same was A Washington statute provides that recorded, although the judgment credwhen a judgment is modified, all liens itor has no notice of such deed.--Smith and securities obtained under it shall 1. Savage, 3 Kan. App. 566, 43 Pac. 847; be preserved to the modified judgment. but where a mortgage is given to se It was held under that statute that al- cure an antecedent debt, it is not prior though the record shows that a former in lien to a judgment entered the sande judgment was, in form, vacated and a day on which the mortgage was fileil, new one entered, yet where the new although the judgment entered was judgment is only for a small amount not filed until after the filing of the less than the other, and is otherwise mortgage, but will prorate with the the same, it should be treated as judgment.-Goetzinger v. Rosenfeld, 16 modification of the former, so to Wash. 392, 47 Pac. 882; and where a preserve liens acquired thereunder.-- judgment has been duly docketed, it is Smith v. De Lanty, 11 Wash. 386, 39 å lien on real property previously conPac. 638.
veyed by the judgment debtor in frauil NO LIEN ON TRUST PROPERTY: of creditors, since the statute made A judgment was recorded by a plain- the conveyance void.–First National tiff against W. and remained for some Bank of Los Angeles v. Maxwell, 123 time unpaid. A year later, a deed was (al. 360, 55 Pac. 980; Blair v. Ostranexecuted to W., granting certain land. der, 47 L. R. A. 469. See extended note A year after that, an execution on the to this case. judgment was levied upon the land
Section 2854. Duty of Recorder: The recorder shall, on the filing of such transcript in his office, immediately proceed to record and index the same in a separate book for that purpose, in the same manner as a judgment rendered in the court of his own county, and he shall be allowed to charge and receive the same fees as provided by the law for like service.
1899, 5th Ses. p. 80, Sec. 2; 1891, 1st Ses. p. 119.