United States v. Foster, 9670.

• Decision Date: 24 October 1941
• Docket Number: No. 9670.,9670.
• Citation: 123 F.2d 32
• Parties: UNITED STATES v. FOSTER.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F.2d 32 (1941)

UNITED STATES v. FOSTER.

No. 9670.

Circuit Court of Appeals, Ninth Circuit.

October 24, 1941.

Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., and Emmet J. Seawell, Asst. U. S. Atty., of Sacramento, Cal., and Francis M. Shea, Asst. Atty. Gen., and Robert Kaplan, Atty. Dept. of Justice, of Washington, D. C., for appellant.

E. S. Mitchell, of Eureka, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

The appellant, plaintiff below, brought an action against Emma G. Foster to recover damages for an alleged conversion of ten head of cattle. The complaint alleged that Harvey Hopper and Mabel Hopper, his wife, as mortgagors, had executed and delivered to the plaintiff, as mortgagee, on April 29, 1938, a chattel mortgage covering crops, certain described farming equipment, and certain described livestock, located on premises occupied by the Hoppers, also described; that the livestock described included ten head of cattle, named and identified; that the debt secured by the chattel mortgage was in default; that the defendant, on or about May 24, 1938, took possession of said ten head of cattle and refused to surrender and deliver the same to the plaintiff. The mortgage, made a part of the complaint by reference, was acknowledged and recorded in the county of the state of California wherein the premises were situated, and subjects of the mortgage were located. The answer specifically denied unlawful conversion, admitted refusal to surrender the cattle to plaintiff, denied that the Hoppers were the owners of the cattle or entitled to the possession thereof; and denied all other material allegations of the complaint for lack of information.

The action was tried to the court sitting without a jury, which found for the defendant, and entered findings of fact and conclusions of law. The court found that the Hoppers executed and delivered the chattel mortgage as alleged; that the Hoppers were not the owners nor entitled to the possession of the ten head of cattle; that defendant Foster was at all times the owner of the said ten head of cattle and entitled to the possession thereof; that Harvey Hopper and Mabel Hopper had no right whatever in said stock, other than a possessory right; that the ten head of stock described in the complaint were at all times the property of defendant Foster; that any lien plaintiff may have had in said stock was subject to the title, ownership, and right of possession of the defendant; that "all of the allegations of the Defendant's Answer are true and sustained by the evidence"; that no conversion occurred and defendant was entitled to possession of said stock, both against the plaintiff and against the Hoppers.

Judgment was entered in favor of the defendant pursuant to the findings, and the plaintiff appeals. The appellant inquires, "Is a Farm Security Administration mortgage of livestock, executed in consideration of the extension of an earlier mortgage, valid as against the vendor of the livestock who obtained from the vendee a note containing a provision that title to the livestock was to be retained as security, but who never recorded the agreement?" And, in answer to its own question, the appellant asserts, "Since the alleged contract was one of conditional sale and was not recorded, and since the Government had no actual notice of the same, the case should have been decided in favor of appellant."

The case is before us on an agreed statement of facts, which reads as follows.

"The United States Government loaned to Hopper $1637.00, taking a mortgage on certain farm equipment and stock owned by the said Hopper. That after such mortgage was given, the Hoppers rented lands belonging to the defendant, adjoining those on which he was running and pasturing the mortgaged stock. About the same time he rented the Foster Ranch he purchased nine ten? head of cows from defendant. That the reasonable value of said cows was...