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come or source of support, the statute does not concern itself. It
is not 6ur purpose to indicate to the trial court the quantity of
land necessary for the convenient use and occupation of this
dwelling-house, but it is entirely evident that forty acres is too
much, and we think it equally evident that an entire twenty-acre
tract is too much. We see no objections to the complaint of suf-
ficient merit to demand a reversal of the judgment

For the foregoing reasons the judgment and order are leversed
and the cause remanded.

Van Fleet, J., and Harrison, J., concurred.

of a mechanic includes not onlv the buildings on which his work wae
done and the land on which tney stand, but also the land about the
buildings used with them and necessarily or reasonably convenient
to their use: Bank v. Curtiss, 18 Conn. 342; 46 Am. Deo. 825. In Lyon
T. Logan, 68 Tex. 521, 2 Am. St. Rep. 511, it was held that claiming a
lien on more land than it could lawfully attach to would not ritiate Uie
lien on so much land as it can coTer, nnleai the claim ii intentionaU/
and frandalently made.

Cardenas v. Milleb.

riOS Oauforhta, 260.]

IN INTERPRETING A STATUTE the words lued shoald bee
ftmed with reference to the subject matter.

STATUTES, INTERPRETATION OF.— General language used in
a chapter of the code relating to real property cannot control other
sections of the same code relating to personal property. Therefore,
a seneral statement to the effect that an unrecorcled instrument is
valid between the parties thereto and those who have notice thereof
does not control nor vary the provisions of the same code upon the
subject of chattel mortgages.

OF THE MORTGAGOR, though he has notice thereof, under a statute
declaring that a mortgage of personal property is void as against
creditors of the mortgagor ana subsequent purchasers and encum-
brancers of the property in good faith and for value, unless it Is ac-
kuowledged, or proved, certified, and recorded in like manner as grants
of real property. The words "in good faith and for vaine" feler to
purchasers and encumbrancers, and not to creditors.

Digitized by


July, 1695.] Cardenas v. Milleb. 8C

i). F. Thomas, for the appellant.

A. Leslie and Richards & Carrier, for the respondent.

*^ The COURT. Upon further consideration of this canse
upon rehearing we are satisfied with the conclusion reached in
Department, as expressed in the opinion of Mr. Commissioner
Searls. The supposed conflict between the opinion of the De-
partment and the case of Fette v. Lane (Cal., Sept. 21, 1894), 37
Pac. Rep. 914, urged in the petition for rehearing, does not exist.
The court were there considering the rights of a subsequent mort-
gagee taking with notice of a prior unrecorded mortgage, and the
question as to the rights of an attaching creditor against the
holder of such a mortgage was not involved. It is true that the
learned commissioner who wrote the opinion in that case suggests
in passing: **Nor could the attachment of the property by de-
fendant, after notice of plaintiff's mortgage, affect his lien, even
if the attachment had not been dismissed." But the question of
the effect of an attachment was not before the court, and what is
there said with reference thereto was not necessary to a deter-
mination of the case; it is therefore to be regarded as mere dic-
*tum, and, as it announces a doctrine which we regard as incon-
sistent with the plain meaning and effect of our statute, it cannot
be permitted to affect our consideration. Our statute makes a very
plain distinction between creditors and subsequent purchasers
and mortgagees. The latter are protected against the prior un-
recorded mortgage only when they take their conveyances "in
good faith and for value"; and, of course, they do not take them
in good faith if they have actual notice of the prior mortgage.
But not so as to creditors. As to them good faith is not made a
condition, but such a mortgage is declared void without qualifi-
cation. As to them the question of actual notice is made wholly
immaterial under the statute, and, consequently, knowledge on
their part of the existence of such imrecorded mortgage will not
protect its holder against their claims. ^^^ The plain import of
the statute is that nothing but a compliance with its terms will
protect a mortgage of chattels against creditors. This construc-
tion is in accord with that given to the statutes of a number of
other states wherein a similar distinction is made in the law be-
tween creditors and subsequent purchasers and mortgagees: See
Jones on Chattel Mortgages, sec. 318, and cases cited.

Our statute is expressed in language so clear and unequivocal,
indeed, as to be susceptible of no other reasonable construction,
imless the explicit terms of section 2957 of the Civil Code are to

Digitized by


86 Cardenas v. Hillbb. [CaL

be regarded as modified by the provisions of section 1217j but, for
the reason stated in the opinion of the Department^ it if clear to
our minds that the latter section has no application.
The judgment and order appealed from are affirmed.

The following is the opinion above referred to, rendered in
Department Two on the 13th of March, 1895:

SEARLS, C. This is an action in claim and deliveiy, to re-
cover a quantity of barley, or its value and damages.

The case was tried by the court without a jury and findings in
writing made and filed, upon which judgment was entered in
favor of defendant.

Plaintiff appeals from the judgment and from an order deny-
ing his motion for a new triaL The complaint ia in the usual
form in claim and delivery.

The answer denies many of the allegations of the complaint,
and justifies the taking and holding the barley as the assignee in
insolvency of one A. J. Drennan, who is alleged to have been the
owner thereof. At the trial it was shown that, in 1892, A. J.
Drennan raised a crop of barley upon certain land in Santa Bar-
bara county, which he leased from two separate individuals, giv-
ing one-fifth of the crop to the owners of the land in lieu of rent

On the 11th of March, 1892, Drennan executed in due form a
chattel mortgage to Fernando Cardenas, the plaintiff **^ and
appellant herein, upon his share of the growing crop of barley, to
secure the payment of two hundred dollars, with interest at one
per cent per month. The mortgage contained the affidavit of the
parties and was duly acknowledged, but was not recorded until
the twenty-eighth day of June, 1892, when it was duly recorded.

John F. Miller, the defendant and respondent herein, brought
suit against Drennan to recover money due upon a promissory
note dated in 1891, issued an attachment, etc., which was levied
upon the interest of Drennan in the growing crop on the twenty-
third day of June, 1892.

The levy was made by the sheriff by leaving personally with the
defendant Drennan a copy of the writ of attachment, together
with a notice, etc., as provided by subdivision 5 of section 543 of
the Code of Civil Procedure, and by placing a keeper in charge of
the growing crop. Defendant Miller had actual notice of the
chattel mortgage at the time of suing out and service of his writ
of attachment.

On the thirtieth day of June, 1892, A. J. Drennan filed hia
petition in insolvency in the superior court in and for the county

Digitized by


July, 1895.] Cardenas v. Milleeu 87

of Santa Barbara, and on the same day an order adjudicating
him an insolvent, directing the sheriff to take possession of his
estate, staying all proceedings against said insolvent, directing
publication, etc., was duly entered. The sheriff took possession
of the property and placed B. P. Nosser in possession in place of
8. C. Tyler^ who had acted as keeper for the sheriff under the at-

Such proceedings were thereafter had in the insolvency pro-
ceedings that on the thirteenth day of August, 1892, John F,
Miller, the defendant herein, was appointed assignee of the estate
of said insolvent, and on the same day received an assignment of
all the property of the estate from the clerk of the superior court
The barley was harvested, threshed, and sacked by plaintiff in
the latter part of August. There is testimony *** tending to
show that this was done by consent of the sheriff or his keeper.
Plaintiff^ however, claimed the right so to do under his mort-
About the 1st of September, 1892, defendant, as assignee, took
possession of the barley and removed it, offering to pay plaintiff
his expenses for harvesting and threshing, amounting to about
three hundred dollars, but refusing to pay two hundred dollars
claimed by the plaintiff as due on his mortgage. The attach-
ment having been levied June 23, 1892, and the chattel mort-
gage, not having been recorded until five days thereafter, vii,,
June 28, 1892, the question arises, Has the lien of the attachment
priority over that of the mortgage in favor of an attaching cred-
itor who had actual notice of the existence of such chattel mort-

If this question be answered in the affirmative we are of opin-
ion the judgment of the court below should be affirmed, and if a
native answer be returned such judgment should be reversed.
There are some minor points made by counsel for appellant, but
upon examination it is believed that they are either not sustained
by the record or do not call for a reversal.

Under the doctrine enunciated in Beamer v. Freeman, 84 CaL
554, the lien of the attachment, if prior to that of the mortgage,
though such attachment was dissolved by the proceedings in in-
solvency taken within one month after the attachment lien at-
tached, did not inure to the benefit of the holder of the chattel
mortgage, but to the benefit of general creditors of the insolvent;
and the assignee in insolvency was, as the trustee of the creditors^
entitled to possession of the property in dispute.

Digitized by


88 Cardenas v. Millbb. [CaL

The contention of appellani is that the def endant^ haTing had
actual notice of the eidstence of plaintiff's chattel mortgage, was
bound by it as effectually as if it had been placed on record be-
fore he instituted his suit and caused the writ of attachment to
issue and be levied upon the mortgaged property, and in support
of this contention we are referred to section 1217 of the Ciyil
•"• Code, which is as follows: ''An unrecorded instrument is
yaUd as between the parties thereto and those who have notice

The term ''instrument,'^ in its broad sense, includes formal or
legal documents in writing, including contracts, deeds, wills,
bonds, leases, mortgages, etc.

In the law of evidence it has a still wider meaning and includes
not merely docimients, but witnesses and things animate or inani-
mate which may be presented for inspection: 1 Wharton on Evi-
dence, sec. 615; Black's Law Dictionary, tit. Instrument. It is a
familiar rule, however, that in construing a statute words used
therein and their meaning are to be construed with reference to
the subject matter embraced in such statute. Chapter 4 of the
Civil Code, in which section 1217 occurs, relates to the recording
transfers of real property, what may be recorded, mode of record-
ing, proof and aclmowledgment of instruments, and effect of
recording, or the want thereof. The first section of the chapter
(Civ. Code, sec. 1158) provides that "any instrument or judgment
affecting the title to or possession of real property may be recorded
under this chapter."

The entire chapter deals with real property and the recording
•f instruments relating thereto. It follows that section 1217, the
last section in the chapter, must be held to relate to the same sub-
ject matter.

This intention is made more manifest by section 1164 of the
same chapter, which provides that "transfers of property in trust
for the benefit of creditors, and transfers or liens on property by
way of mortgage, are required to be recorded in the cases specified
in the titles on the special relation of debtor and creditor, and the
chapter on mortgages respectively."

This last section tends to show the understanding and intent
of the lawmakers to relegate the manner of recording in the
specified cases to the several statutes pointed out and which pro-
vide therefor.

Turning to the chapter on mortgages and we find that ^^ as to-
chattel mortgages, or mortgages on personal property, the method

Digitized by


hljt 1895.] Cabdbnas v. Miller. 89

of their execution is provided ag well as the effect of nonrecordsp
tion, differing essentially from cases of mortgages on real prop-

Section 2957 is as follows: ''A mortgage of personal property
is Yoid as against creditors of the mortgagor and subsequent pur-
chasers and encumbrancers of the property in good faith and for
Talue, unless: 1. It is accompanied by the affidavit of all the par-
ties thereto^ that it is made in good faith and without any design
to hinder, delay, or defraud creditors; 2. It is acknowledged or
proved, certified^ and recorded in like manner as grants of real

It will be perceived that under the section quoted the mort-
gage, unless it is recorded, ^^is void as against the creditors of the
mortgagor and subsequent purchasers and encumbrancers of the
property in good faith and for value." The defendant was a
creditor of the mortgagor. In order for the mortgage to be void
against subsequent purchasers and encumbrancers it is requisite
that they be such in good faith, that is to say, with an honest in-
tention to abstain from taking any unconscientious advantage of
another, together with an absence of all information or belief of
facts which would render the transaction unconscientious. The
terms "good faith" and *T)ona fide purchasers** are borrowed from
equity jurisprudence, and it is said must be interpreted accord-
ingly: Wells V. Smith, 2 Utah, 52; Alden v. Trubee, 44 Conn. 459;
De Mott V. Starkey, 3 Barb. Ch. 406; Spicer v. Waters, 66 Barb.

The foregoing remarks apply to chattel mortgages under the
itatntes and where no delivery of possession of the property
mortgaged to the mortgagee has been made.

The contention of appellant is that the term ^creditors,*' as
used in the statute quoted supra, is modified by the terms, ''in
good faith** and "for value,** equally with the words "subsequent
purchasers and encumbrancers.**

In other words, the position of appellant is that creditors ■■■
Vike mortgagees and subsequent purchasers, must be such in good
faith, and that there can be no good faith in such a case where
the creditor as here has actual notice. Chattel mortgages in this
state, which are not recorded, are absolutely void except in the
cases provided for in the statute. Becording the instrument
takes the place of the delivery of possession of the mortgaged
chattels: Berson v. Nunan, 63 Cal. 550. Their validity depends
as much upon their proper acknowledgment and registration as
upon their execution and delivery. Under the law of this state

Digitized by


DO Cardenas v, Millbb [Cal.

as it formerly existed, such mortgages, unless recorded^ were
void as to all the world except the parties thereto. Now they
are valid as to all the world except the two enumerated claases,
viz., creditors, and subsequent purchasers and encumbrancers of
the property in good faith and for value. The term '^creditor^
signifies "a person to whom a debt is owing by another person
called the debtor*': Black's Law Dictionary.

In the general and extensive sense of the term he is a creditor
who has a right by law to demand and recover of another a sum
of money on any account whatever: Stanly v. Ogden, 2 Boot,

The term "good faith," as applied to a purchaser, ex vi termini,
means one who purchases without notice and for value: Black's
Law Dictionary.

This term has no natural application to a creditor who is of
necessity such for value; and without value, either express or im-
plied, he is not a creditor. No suflBcient reason is discerned for
supposing that the lawmakers intended to modify the term
"creditor" by the language naturally applying to subsequent
purchasers and encumbrancers.

The term "creditors" is general, and applies to creditors exist-
ing prior to the mortgage, as well as subsequent. A prior cred-
itor could not have had notice, at the time of advancing his
money or other value to a debtor, of a mortgage which did not
then exist, and as against him the equities which may be invoked
against a subsequent ^^^ purchaser or encumbrancer with notice
and for value have no existence.

Non constat, but that the creditor may have trusted his debtor
upon the faith of the property sought to be mortgaged.

This is not urged as a reason as against the statute if it has in
fact included the creditor, but rather as a solution in his favor,
where the most that can be said is that a doubt is created by the
language used. The adjudicated cases in the several states seem
at first glance to involve a marked difference of opinion on the
subject; but, upon more careful examination, it is believed the
divergence is mainly attributable to the different wording of the
statutes of the several states, and in those jurisdictions where
their statutes are precisely or practically similar to our own we
find it usually held that an unrecorded mortgage is void as against
a creditor of the mortgagor, although he have actual notice.
Thus, in New York, where the statute provides that upon failure
to record the mortgage "is void as against the creditors of the
mortgagor^ and as against subsequent purchasers and mortgagees

Digitized by


July, 1895.] Cardenas v. Miller. 91

in good faith,** it is held that, as against creditors of the morfr*
gagor with notice, the mortgage is void: Fanners' Loan etc. Co.
T. Hendrickson, 25 Barb. 484; Stevens v. Buffalo etc. B. B. Co.»
31 Barb. 690; Karst v. Gane, 136 N. Y. 316.

In South Dakota, with a statute almost identical with our own,
the supreme court, in Eimball y. Kirby, 4 S. Dak. 152, held that
the lien of an execution takes precedence of an unrecorded chat-
tel mortgage, irrespective of whether or not the judgment cred-
itor had actual notice of the unrecorded chattel mortgage. New
Jersey, Texas, Nebraska, and Ohio, with similar statutes, have
held similarly: Williamson v. New Jersey etc. E. B. Co., 29 N. J.
Eq. 336; Sayre v. Hewes, 32 N. J. Eq. 666; Brothers v. Mundell,
60 Tex. 246; Earle v. Burch, 21 Neb. 702; Cooper t. Koppes, 46
Ohio St 625.

In Iowa the language of the statute is: '^o . • • . mortgage

of personal property is valid against ••• existing creditors or

sabsequent purchasers without notice, unless,** etc.

And the supreme court of that state held in Allen v. HcCalla,
25 Iowa, 464, 96 Aul Dec. 56, that a mortgage of personal prop-
erty duly executed though not recorded, etc., was valid as against
existing creditors with notice of the mortgage. In this last case
the court, in alluding to the different construction given to the
statutes of Ohio, New York, Massachusetts, and other states, said
this difference ''grows out of the different, not to say peculiar,
langnage of the statutes of those states.*'

Jones, in his work on Chattel Mortgages, at section 818, uses
the following language:

TTnder the statutes of some states notice of a mortgage not
filed does not affect creditors, but does affect subsequent pur^
ehaseiB and mortgagees. Good faith is not required of creditors
in order to enable them to avoid such a mortgage.

^This distinction is founded upon the terms of the statutes.
Thus in New York the statute declares that such a mortgage is
'void as against the creditors of the mortgagor, and as against
snbsequent purchasers and mortgagees in good faith.'

''Subsequent purchasers and mortgagees are not protected un-
less they take their conveyance in good faith, and they cannot
take them in good faith it they have actual knowledge of the
existence of an antecedent mortgage.

^ut as against creditors such a mortgage is dedaied void with-
out qualification. And, therefore, mere knowledge on the part
of a creditor that his debtor has executed a mortgage which has

Digitized by


92 Cabdknai v. Milleb. [CaL

not been diily filed does not preclude him from aYaOing Iiimself
of the objection that it is for this reason void. . • • .

'*The statute of New Jersey makes a similar distinction be-
tween creditors and subsequent purchasers and mortgagees.
Such is also the law of Ohio and Texas.''

California and several other states may le mentioned as hav-
ing statutes similar in structure with those mentioned. ^^ We
are in accord with the rulings of other states having like statute:^,
in holding as we do that our statute has created two classes of ]>er-
sons^ of which creditors are one and bona fide purchasers and
encumbrancers the other, and that the expression ''in good faith
and for value'* modifies the latter and not the former. It foil jws
that the actual knowledge on the part of the defendant of the
existence of the unrecorded mortgage of the plaintiff did not, as
against said defendant, validate the mortgage or prevent the
priority of his attachment lien.

The judgment and order appealed from should be afilrmed.

Haynes, C, and Belcher, C, concurred.

For the reasons given in the foregoing opinion the jadgment
and order appealed from are affirmed.

Henshaw, J., McFarland^ J.^ Temple^ J.

STATUTES-INTERPRETATION*— A special provision in a statato
relating to a specific subject matter controls general provisions therein :
Bicharas V. Commissioners, 40 Neb. 45; 42 Am. St. Rep. 650. When
general words follow specitic words designating certain specified things,
the general words are to be limited to cases of the same general nature
as those which are specified : People v. Richards, 108 N. x. 137 ; 2 Anu
St. Rep. 373.

CHATTEL MORTGAGES— RECORDING.— A mortgage of chattels^
duly executed, is valid against existing creditors with notice, although
the mortgage be not recorded, and the mort gather retains possession of
the property. The phrase ''without notice/' used in the statute, ap-
plies to creditors as well as to purchasers: Allen v. McCalla, 25 Iowa.
464; 96 Am. Dec. 56, and note, in which the validity of an unrecordea
chattel mort>;age against creditors with actual notice thereof is dis-
cussed. One having notice of the existence of a chattel mortgage can-
not treat it as void because it has not bi*en filed for record : Union Nat.
Bank v. Onion, 3 N. Dak. 193: 44 Am. St. Rep. 533, and note. See the
notes to Brown v. James H. Campbell Co., 21 Am. St. Bep. S^S, and
Bingham v. Jordan, 79 Am. Dec. 750.

Digitized by


Aug. 1895.] Ex PABTK Lacit. S8


[106 Cauwobxia^ t26.]

•titutioD providing that any cit^ may make and enforce within iti
limits all euch local, police, sanitary, and other regulations as are
not in conflict with the general laws, a city may enact and enforce
an ordinance prohibiting the conducting of any steam shoddy ma-
chine or steam carpet-beating machine within one hundred feet of
any church, schoolhouse, or residence.

TRADES.— The operation of a steam shoddy machine or steam carpet-
beating machine within a hundred feet of any church, schoolhouse, or
naidenoe may be prohibited by municipal ordinance.

TERMINE WHAT IS.— As to those classes of business in the conduct-
ing of which police and sanitary regulations are made in a greater
«r less degree by every city^ the determination of the municipal legis-
lature that they are hostile and should be regulated is conclusive.
flenoe, one prosecuted for conductins a steam carpet- beating machine
within one nundred feet of a church, schoolhouse, or dwelling cannot
escape conviction by provinf^ that his business was not in iaet so oon-
ducted as to oonstitate a nuisance.

D. P. Hatch, for the petitioner.

C. McFarland, city attorney, for the people.

«•'' GAEOUTTE, J. The petitioner has been convicted and
imprisoned for violating a city ordinance of the city of Los
Angeles, which provides: ^'No person or persons shall establish
or conduct any steam shoddy machine, or steam carpet-beating
machine, within one hundred feet of any church, schoolhouse,
residence, or dwelling-house/* He now alleges the judgment

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 9 of 121)