Witt v. Milton, 17105
| Decision Date | 14 January 1957 |
| Docket Number | No. 17105,17105 |
| Citation | 305 P.2d 944,147 Cal.App.2d 554 |
| Court | California Court of Appeals Court of Appeals |
| Parties | O. J. WITT, Plaintiff and Appellant, v. Douglas C. MILTON, M. P. Nation and C. J. Green, Defendants and Respondents. |
Husted, Pinney & Smith, W. M. Pinney, Jr., San Francisco, for appellant.
Mandl & Atteridge, Salinas, for respondent C. J. Green.
Theo H. Cominos, Salinas, for respondents Milton and Nation.
The principal question presented by this appeal by plaintiff from a judgment in favor of defendants entered upon an order sustaining demurrer without leave to amend is--Is a chattel mortgage void as to third parties where it fails to describe the location of the personal property thereby sought to be mortgaged?
Second Amended Complaint.
It alleged that plaintiff is the owner of and mortgagee in a chattel mortgage executed by Daley and wife to secure the payment of a certain promissory note. The property mortgaged consists of certain personal property therein listed, such as 9 single beds, 13 double beds, etc. (Nowhere is the location of such property mentioned.) While plaintiff was entitled to immediate possession of the mortgaged property, defendants (who are not parties to the mortgage) seized the property, took it into their own possession and now withhold it from plaintiff. In the order sustaining the demurrer without leave to amend the court stated that it was granted 'Inasmuch as the location of the personal property cannot be determined from the chattel mortgage, nor by reasonable inquiry based thereon * * *'
'Is the Mortgage Void?
Preliminarily it can hardly be contended, in view of the fact that neither the mortgage itself (copy of which is attached to the complaint) nor the complaint either describe the location of the articles or give any basis for inquiry as to their location, that the complaint states a cause of action or that the court was not justified in sustaining the demurrer.
In Pace v. Threewit, 1939, at page 513, 88 P.2d 247, at page 249, 31 Cal.App.2d 509 in discussing the rules for determining the sufficiency of the description in a mortgage of this type, the court said: 'It is pointed out in the rules above set forth that the description should be such that the property may be identified by it alone or that the description in itself should suggest inquiries or means of identification which, if pursued, will identify the property.'
The more serious question is whether the mortgage is void because of the omission of the property's location, or whether the property could be identified by extrinsic evidence under proper allegations in an amended complaint. If the latter, the court should have permitted the complaint to be amended to identify the property. * An examination of the mortgage supplies no hint as to the location of the property. In the Pace case it was held 'There should be something more than merely the name of the mortgagor' 31 Cal.App.2d at page 514, 88 P.2d at page 249, for this purpose. Quoting from 10 Am.Jur. 752, section 55, the court said, 31 Cal.App.2d at page 510, 88 P.2d at page 248: "To be sufficient against a third person, the description of the mortgaged property must be definite enough to enable him, aided by inquiries which the instrument itself suggests, to identify the property. * * *" (Emphasis added.) In Pacific Nat. Agr. Credit Corp. v. Wilbur, 2 Cal.2d 576, 589, 42 P.2d 314, 320, the court quoted from 11 C.J. 457: "As against third persons the description in the mortgage must point out the subject-matter so that such persons may identify the chattels covered, but it is not essential that the description be so specific that the property may be identified by it alone, if such description suggests inquiries or means of identification which, if pursued, will disclose the property covered. * * *" (Emphasis added.) See also 14 C.J.S., Chattel Mortgages, § 57.
Applying the test as set forth in the emphasized language of the above cases to the situation in our case, we find the mortgage contains no suggestion of inquiries or means of identifying the property. The mortgage merely lists certain quantities of beds, bedding, furnishings and furniture. Location, of course, is not important in itself but merely as a means of identification. But, as said in 14 C.J.S., Chattel Mortgages, § 64, p. 671, 'When neither the location, the ownership, nor the possession of the property is stated in the [chattel] mortgage, it is ordinarily fatal to the description; and in all ...
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...not purport to cover turkeys raised by the debtor on premises other than those described in the mortgage (see Witt v. Milton (1957) 147 Cal.App.2d 554, 555--557, 305 P.2d 944), and the jury could properly have concluded that Ralston knew that the chattel mortgage did not give it a right to ......
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