Modesto Bank v. Owens

Citations

• 121 Cal. 223
• 53 P. 552
• 1898 Cal. LEXIS 880

Syllabus

<p>Appeal—Notice—Proof of Service—Separate Affidavit—Dismissal.— 1 The fact that proof of service of the notice of appeal is not attached to the notice, hut is embodied in a separate affidavit filed in the court below and printed in the transcript, is of no consequence, and does not entitle the respondent to a dismissal of the appeal, whether the proof of service is or is not required to be brought up in the record, under section 950 of the Code of Civil Procedure.</p> <p>Mortgage—Rents, Issues, and Profits—Chattel Mortgage upon Crop.— A subsequent chattel mortgage upon a crop takes precedence of a mortgage upon the land, “and the rents, issues, and profits thereof,” which was not executed as the code requires chattel mortgages to be executed; and the proceeds of the sale of the harvested crop cannot be applied to the payment of any deficiency arising upon foreclosure of the real estate mortgage.</p> <p>Id.—Execution of Chattel Mortgage—Affidavit—Partnership.—Where one of the parties to a chattel mortgage is a partnership firm, the affidavit may he made, on the part of the partnership, by one of the members of the firm, described as “of and for the firm.”</p> <p>XD—Notice of Real Estate Mortgage.—The real estate mortgage, not haying been executed as a chattel mortgage, did not cover the crop, but constitutes a lien upon the land only; and it is immaterial whether the mortgagee of a chattel mortgage upon the crop had notice of the real estate mortgage or not.</p> <p>Id.—Foreclosure—Rights of Mortgagee of Crop—The holder of a chattel mortgage upon the crop, made a party defendant to the foreclosure oí the mortgage upon the land, has an interest in the crop, and need not seek a foreclosure of the chattel mortgage, nor be entitled to such foreclosure, upon the filing of an answer, in order to be entitled to resist the wrongful application of the crop to the deficiency arising upon foreclosure of the mortgage upon the land, which constituted no lien upon the crop.</p>