124 Cal. 321 | Cal. | 1899
In 1890 the Consolidated Piedmont Cable Company, a corporation operating a street railroad in .Oakland, executed a mortgage to the California Title Insurance and Trust Company, by its terms including all track and tracks, together with all depot grounds, buildings, machinery, workshops, dummies, cars, rolling stock of all kinds, full equipments, tools, fixtures, and other property, which is now or may hereafter, in whole or in part, be constructed, completed, purchased, acquired,
On the same day, to wit, November 1st, in an action brought by the California Title Insurance and Trust Company, a corporation, against the said Consolidated Piedmont Cable Company to foreclose said mortgage, the plaintiff herein was appointed receiver, with “authority to continue the business of the Consolidated Piedmont Cable Company, and as incident thereto to create such indebtedness as may be necessary in conducting said business, and with the powers incident to the office of receiver.”
On the trial of this action in the court below it was stipulated that certain allegations in the answer were true, and that the property described in the complaint herein was held by the defendant McKillican, as sheriff of the county of Alameda, under an attachment issued against the Consolidated Piedmont Cable Company at the suit of the defendant herein, the Oregon Improvement Company, and the further following stipulation is entered into between the parties:
*324 “CONSOLIDATED PIEDMONT CABLE COMPANY, “OREGON IMPROVEMENT COMPANY, Plaintiff. Defendant.
“Whereas, in the action now pending in the above-entitled court, wherein the California Title Insurance and Trust Company is plaintiff and the above-named defendant is also defendant, the undersigned has been appointed receiver of the property and assets of the above-named defendant and has taken charge of all the property of the defendant, except such as was in possession of Robert McKillican, sheriff of Alameda county, under and by virtue of a writ of attachment levied in the above-entitled action;
“And, whereas, the undersigned has taken possession of all the property of the defendant, but subject to the above-mentioned levy, and it is the intention of the California Title Insurance and Trust Company, the plaintiff in the action wherein the undersigned was appointed receiver, to test the validity of the prior attachment levied in the above-entitled action; and it is desirable that the property belonging to the said defendant be used by the receiver, subject to any lien which the above-named plaintiff may, by virtue of the levy under said writ of attachment, have; and it is also desirable that expense be saved in caring for the said property:
“Now, therefore, I, the undersigned, receiver as aforesaid, do hereby acknowledge that I have received possession from the said Robert McKillican, sheriff as aforesaid, as caretaker for him, of the personal property levied upon by him under the writ of attachment in the above-entitled action, and I do hereby agree to restore the same to the possession of the said Robert McKillican, sheriff, whenever he shall demand of me so to do.
“But this receipt shall not prejudice any claim which I, as receiver, may make, that said levy of a writ of attachment is inferior in right to any claim as receiver.
“Dated Oakland, November 1, 1893.
“(Signed)
IRA BISHOP.
*325 “To Robert McKillican, Sheriff:
“If Ira Bishop, receiver, et cetera, will sign the foregoing receipt you are at liberty to appoint him caretaker of the property levied upon by you, and the plaintiff will acquit you of any claim for damages arising from any act of his.
“Dated November 1, 1893. “SIDNEY Y. SMITH and
“WARREN OLNEY,
“Attorneys for Oregon Improvement Company.”
And after the execution of the stipulation the property up to the time of levy of execution was used or held under and in pursuance to the terms of the stipulation.
From the facts, as appears in the record, the plaintiff never had possession of the articles sued for as receiver, or in any other way, except as the servant of the defendant McKillican, as sheriff, whereas the action seems to be based upon the theory that the property was in the possession of the plaintiff as receiver, and unlawfully and wrongfully taken from his possession by the defendants. As to this property, the possession of the receiver was never disturbed or interfered with. The facts, therefore, are not consistent with the plaintiff’s theory of his cause of action. The only authority the receiver has for bringing this action is the order appointing him. That does not specially authorize him to bring a suit for the recovery or value of property withheld or converted of which he never was in possession. Beach on Receivers, sections 672, 673, says: “It has been formally adjudicated that a receiver, who has had possession of property by virtue of his appointment as such receiver by a competent court, may maintain an action of detinue for the property. Although such an action could not be maintained if grounded merely upon the right of property which may be claimed to vest in him by virtue of his appointment, yet, as a mere right of possession, is a sufficient basis upon which to found the action, and as he is entitled to the possession, he may avail himself of this remedy. A receiver appointed in supplementary proceedings takes only an equitable right of redemption in chattels mortgaged by the judgment debtor when reduced to possession by the mortgagee before the commencement of the proceedings, and he cannot maintain replevin for such chattels against the mortgagee. In a recent ease in England it was held
Beach on Beceivers, section 650, says: “The receiver has no right to sue except by leave of the court which appointed him. Out of the established doctrine that a receiver is the officer of the court—(‘the hand’) by which it executes its will in regard to the property in its keeping—is deduced the well-nigh universal rule that a receiver may not bring any suit without having first obtained leave of court.” And since the appeal was taken in this case, in the action of California Title etc. Co. v. Consolidated Piedmont Cable Co., 117 Cal. 237, it was held that moneys due the Piedmont Cable Company did not pass to the possession of the receiver by virtue of his appointment as such, and that the same were subject to and were attached by Albert S. Black, a creditor of said Piedmont company. The court say: “The mortgage did not cover the assets of the corporation due therein beyond the property as hereinbefore stated, and the receiver was appointed, not to collect the debts due the corporation defendant, but only to take possession of the mortgaged property, operate the road, et cetera. When, therefore, he took posses
The property in question in this action is personal and not real estate. The mode and manner of mortgaging chattels or personal property is pointed out in the Civil Code, sections 2950-72. By section 2957 it is declared: “A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith and without any design to hinder, delay, or defraud creditors; 2. It is acknowledged or proved, certified and recorded in like manner as grants of real property.”
As already stated, the mortgage in question did not purport to be executed in pursuance of the requirements of the code concerning chattel mortgages, but only as a mortgage of real property. The first section of the chattel mortgage provision specifies what articles of personal property may be mortgaged, and the first subdivision includes “locomotives, engines, and other rolling stock of a railroad”; the ninth, “growing crop's.” Simpson v. Ferguson, 112 Cal. 180, 53 Am. St. Rep. 201, was a case of a mortgage of growing crops. In that case a real estate mortgage had been executed, covering the land upon which the crops were grown, subsequent to the execution of the mortgage. The court say: “It is urged that sections 2950 and following of the Civil Code, providing for the manner of mortgaging growing crops, do not establish an exclusive method; that as this class of property may, under some conditions, be regarded as realty, and under other conditions as personalty, it must follow that under corresponding conditions the property may be the subject of a real estate mortgage or a chattel mortgage, according to the circumstances; and that plaintiff having a valid
Section 456 of the Civil Code is found in division I, part IX, title III, under the head of “Bailroad Corporations.” It is simply intended, as its language imports, to confer upon railroad corporations the power to mortgage their property. Being a corporation and the creature of law, it would possess no such power without direct authority given to it by law. The section does not in terms, however, as implied in the decision of the circuit court of appeals, confer power to mortgage “their franchises and real and personal property as an entirety,” but simply confers the power to mortgage such property without prescribing the mode. The same power is possessed by individuals. Still, it would hardly be claimed that an individual, owning a railroad and all the other property that ordinary railroad corporations own, could mortgage the whole property, real, personal and franchises, in one instrument as a real estate mortgage. (See, also, Hoyle v. Plattsburg etc. R. R. Co., 54 N. Y. 314; 13 Am. Rep. 595.)
The mode and manner of executing mortgages, both of real and personal property, will be found in altogether a different part of the Civil Code from that concerning corporations, to wit, under division III, part IV, title XIV. In article II the mode of mortgaging real property is pointed out from section 2947 to section 2952, inclusive, and mortgages of personal property in
The judgment and order denying a new trial are affirmed.
Harrison, J., and Garoutte, J., concurred.