Rohrbough v. Johnson

Citations

• 107 Cal. 144
• 40 P. 37
• 1895 Cal. LEXIS 724

Syllabus

<p>Chattel Mortgage — Harvested Crop — Common-law Mortgage — Change of Possession.—A valid statutory chattel mortgage cannot be made upon a harvested crop, but what is frequently called “a common-law chattel mortgage” may be taken upon any species of personal property, if followed by a delivery of the property to the mortgagee, and an actual and continued change of possession, as required by section 3440 of the Civil Code.</p> <p>Id.—Delivery of Goods as Security—Pledge.—The delivery of goods to a creditor as security for a debt is not properly a common-law mortgage, nor is it a mortgage under the Civil Code, but is properly denominated a pledge, yet the question whether the instrument be called a mortgage or a pledge does not affect its efficacy as a security where there is a sufficient delivery and change of possession.</p> <p>Id.—Construction of Statute of Frauds—Rule as to Change of Possession.—The construction fixed by the decisions of this court upon section 3440 of the Civil Code, which requires an immediate delivery and an actual and continued change of possession upon a sale of personal property, is equally applicable to chattel mortgages, other than those authorized by statute, and the same rule must apply in determining what is an immediate delivery and an actual and continued change of possession, viz., that these questions must be determined upon the facts of each particular case.</p> <p>Id.—Mortgage Giving Right of Possession—Debt not Due—Delivery from Bailee to Mortgagee—Attachment.—Where the mortgage of a harvested crop provided that, if the mortgagee should deem himself insecure, he might take possession of the property, and sell it without' foreclosure, and the crop had been delivered by the mortgagor to a bailee for the purpose of being cured and made into bales, the. bailee having knowledge of the mortgage, and having a lien upon the crop dependent upon possession for the value of his services in curing and baling the crop, the mortgagee may, as