SMITH
J.
The
only question for determination in this case is whether a
chattel mortgage of certain cows covers their calves in
gestation at the time the mortgage was executed, but born
prior to foreclosure; there being no reference in the
mortgage to the increase of the cows. The defendant, Graham
holds in his possession, as sheriff of Missoula county, the
sum of $609, the proceeds of the sale of 87 calves, sold by
him under a stipulation that he should hold the proceeds
until the final determination of this action. The plaintiff
claims
the money by virtue of the fact that he held a chattel
mortgage on the mothers of the calves at the time the young
were born. The appellant, Prideaux, claims to be entitled to
the sum by virtue of a sale of the calves to him by Sloan
the mortgagor, after the sheriff had seized but before he
sold the same under plaintiff's mortgage. Prideaux set
forth in his answer the respective claims of the parties, as
above recited. The district court of Missoula county
sustained a general demurrer to the answer, and, in default
of further pleading by Prideaux, entered a judgment in favor
of the plaintiff and against the defendant Graham, as
sheriff, for the sum of money in dispute. From that judgment
Prideaux has appealed.
The law
is well settled in this state that a chattel mortgage only
creates a lien and does not pass title from the mortgagor to
the mortgagee. Bennett Bros. Co. v. Tam, 24 Mont
457-467, 62 P. 780; Mueller v. Renkes, 31 Mont. 100
77 P. 512. Such lien transfers no title. Civ. Code, § 3750.
The question of the extent of the lien created, in those
jurisdictions where no title passes, has been a fruitful
source of litigation for many years. The immediate question
that we are to decide has never been before this court, and
we feel therefore that in the determination of the same we
should point out what seem to us to be the principles
involved, and not merely cite the precedents of the courts.
The Supreme Court of California, in the case of Shoobert
v. De Motta, 112 Cal. 215, 44 P. 487, 53 Am. St. Rep.
207, took occasion to examine and differentiate the decisions
on this subject in the following language: "It has been
held in some states that the lien of a mortgage of domestic
animals extends to the increase of the animals during the
life of the mortgage, whether the terms of the mortgage
include such increase or not, and, following these decisions,
such a rule is stated in text-books upon chattel mortgages.
It will be found, however, upon examination of these cases,
that the decisions therein are based upon the principle of
the common law, which was in force in those states, that by
the mortgage the mortgagee is vested with the title to the
mortgaged property, and becomes the owner thereof; and that
in the case of domestic animals, applying another rule of
both the common and the civil law, that 'the brood
belongs to the owner of the dam or mother, partus sequitur
ventrem' (2 Blackstone's Commentaries, 390), he
thereby becomes the owner of such increase, and, being the
owner, his title in any action at law must prevail. The
earliest application of this rule was in the case of a
mortgage of a female slave (Hughes v. Graves, 1
Litt. 317), which was decided in Kentucky in 1822, and
was afterward followed in Maryland in 1836, in the case of
Evans v. Merriken, 8 Gill. & J. 39, which also
involved the offspring of a female slave which had been
mortgaged; and these cases are cited as the authority upon
which cases involving the same question have been decided in
other states, in some instances referring also to the
principle upon which the rule rests, and in others merely
referring to the cases as an authority (Cahoon v.
Miers, 67 Md. 573, 11 A. 278; Gundy v. Biteler,
6 Ill.App. 510; Ellis v. Reaves, 94 Tenn. 210, 28
S.W. 1089). The rule has also been stated in many other cases
in which the question was neither involved nor decided (
Kellogg v. Lovely, 46 Mich. 131, 8 N.W. 699, 41 Am.
Rep. 151; McCarty v. Blevins, 5 Yerg. (Tenn.) 195,
26 Am. Dec. 262; Gans v. Williams, 62 Ala. 41); and
there is still another line of decisions in which it has been
sought to uphold the propriety of the rule by holding that
the increase which was in gestation at the execution of the
mortgage was inferentially included therein as a part of the
mortgaged property (Funk v. Paul, 64 Wis. 35, 24
N.W. 419, 54 Am. Rep. 576; Rogers v. Hyland, 69
Iowa, 504, 29 N.W. 429, 58 Am. Rep. 230; Edmonston v.
Wilson, 49 Mo.App. 491). Another line of decisions
limits this application of the rule by holding that the
increase is subject to the lien of the mortgage only for so
long a time as the young are in a state of nurture from the
mother. Rogers v. Gage, 59 Mo.App. 107; Darling
v. Wilson, 60 N.H. 59, 49 Am. Rep. 305; Forman v.
Proctor, 9 B. Mon. (Ky.) 124. The want of logical
sequence in this limitation has been felt by the courts, and
some of them have sought to place their decision upon the
fact that, while the young were following the mother, a
purchaser from the mortgagor had notice by that fact that it
was her offspring, and subject to the mortgage, and was thus
prevented from claiming to be a purchaser in good faith.
Placing the decision on this ground is, however, necessarily
a repudiation of the principle upon which all the above cases
rest, for, if the mortgagee is in fact the owner of the
increase, the question of good faith in purchase from the
mortgagor is immaterial. Prior to 1873 the giving of a
chattel mortgage in this state vested the mortgagee with the
title to the property mortgaged (Heyland v. Badger,
35 Cal. 404), and, while this rule of law prevailed, the
foregoing decisions would have been applicable. The Civil
Code, however, went into effect at the beginning of that
year, and under its provisions the mortgagor is not, by the
execution of the chattel mortgage, divested of his title to
the property, but still remains its owner, while the
mortgagee has only a lien thereon. Civ. Code, § 2888; Bank of
Ukiah v. Moore, 106 Cal. 673, 39 P. 1071. Consequently the
foregoing decisions cannot be regarded as having
authoritative force, but the rights of the parties must be
determined upon the general principles controlling the
relations between a...
