Hackett v. Manlove

Citations

• 14 Cal. 85
• 1859 Cal. LEXIS 244

Syllabus

<p>A mortgage of chattels, the possession remaining in the mortgagor, is good against all persons, except subsequent purchasers, and dona fide creditors.</p> <p>The title vests in the mortgagee, subject to be divested on compliance with the conditions.</p> <p>H. has a mortgage on chattels, executed by M. in whose possession, by the terms of the mortgage, they were to remain. Upon default in paying interest or principal, the mortgagor was to surrender possession. H. attaches M. for interest due, and for other debts, and levies on the chattels in M.’s hands. The Constable agrees with H. to hold the property for him, both on the attachment and the mortgage, and M. consents. H. exercises some control over the property. The defendant, as Sheriff, now levies on the property, at the suit of R. v. II. takes possession from the Constable, and pays the attachment of H. H. sues the Sheriff in replevin, and offers, on the trial, to prove that the attachment and judgment in H. v. II. are false, fraudulent, and collusive. Jdeld, that the Court below erred in rejecting the evidence; that, on default of paying interest, it was M.’s duty to give up possession; that his assent to the possession by H. after the Constable’s levy, etc. was sufficient to entitle H. to the property, subject only to his own attachment.</p> <p>Upon the discharge of the attachment by the Sheriff, H. had the title, with the right of immediate possession. And, though the Sheriff might, if he represented a dona fide creditor, seize the property, for want of unequivocal change of possession, M. himself, by fraudulent collusion with R. with or without process, directly or indirectly, could not; nor could a fraudulent pretended creditor.</p> <p>In such case, to prove R to be a collusive creditor, is not collaterally impeaching a judgment. It is merely assailing the judgment for fraud, which may always be done in cases like this.</p> <p>A Sheriff, in such case, has no better rights than the creditor he represents—a