Opinion
Appeal from the District Court of the Twelfth Judicial District, San Francisco County.
This cause was referred to Nathaniel Bennett, Esq., to try the issues joined, and report a judgment.
COUNSEL:
The mortgage on its face was void as against creditors. It expressly stipulated that the mortgagors were to remain in possession until breach of the condition. Under this instrument there could be no such delivery as is contemplated by the statute. Comp. Laws, p. 201, § 17. Billings v. Billings , 2 Cal. 107. Sturtevant v. Ballard, 9 Johns. 343. Thornton v. Davenport, 1 Scam. 296. Letcher v. Norton, 4 Ibid. 579. Otis v. Wood, 3 Wend. 500. Randall v. Cook, 17 Ibid. 58. Bailey v. Barton, 8 Ibid. 347. Tift v. Barton , 4 Denio, 194. Griffin v. Barry, 2 Comst. 371. Goodrich v. Day, 6 Hill, 438. Divier v. McLaughlin, 2 Wend. 586. 5 Sergt. & R. 275. Collins v. Brush, 9 Wend. 198. Redman v. Hendricks, 4 Hill, 271.
Geo. C. Bates, Hoge & Wilson, L. Aldrich, and J. R. McConnell, for Appellant.
H. S. Love, for Respondent.
1. The provisions of the statute are not that the mortgage shall be void, if it contain a stipulation that the property is to remain in the hands of the mortgagors. No matter what the parties agree, provided in fact that there is an actual and continual change of possession of the property mortgaged. It is the non-delivery of the property, and not the agreement as to the delivery, that avoids the mortgage. Welch v. Whittemore, 25 Maine, 86. See note to case. 7 U.S. Digest, p. 371, Title Mortgages. Berry v. Easell, 2 Grat. 333. 17 Wend. 57. 12 Ibid. 61. 9 Ibid. 80. 1 Hill, 473.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The statute of frauds of this State enacts that " no mortgage of personal property hereafter made shall be valid against any other persons than the parties thereto, unless possession of the mortgaged premises be delivered to and retained by the mortgagee."
The mortgage relied upon in this case stipulates for the enjoyment of the possession by the mortgagors until breach of the condition; it would, therefore, according to its terms be invalid under the statute as to all persons except the parties to it.
It is insisted, however, notwithstanding the stipulation for the retention of possession by the mortgagors, that possession was actually and immediately delivered to the mortgagee, and that therefore the intent of the statute is accomplished, and the case taken without its influence. But the question here arises, by what right was possession taken by the mortgagee? No contract, concurrent or subsequent to the execution of the mortgage is made to appear by which any greater authority was conferred than that contained in the mortgage.
The latter, by express agreement, reserves to the mortgagors a leviable estate, an equity of redemption with the right of possession, until the law day of the mortgage.
The plaintiff cannot claim against the Sheriff by virtue of the mortgage, for as yet there is no breach of condition. He cannot claim by virtue of his possession, because the covenants of the mortgage show that he was not entitled to possession, and he has not shown that he was entitled in any other manner. When this case was first submitted, the question on which the decision rests was not brought to the attention of the Court.
The judgment is reversed and the cause remanded.