93 P. 268 | Mont. | 1907
delivered the opinion of the court.
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 eighty-seven 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. Fitchett, 24 Mont. 457-469, 62 Pac. 780; Mueller v. Renkes, 31 Mont. 100, 77 Pac. 512.) Such lien transfers no title. (Civ. Code, sec. 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.
“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, devested of his title to the property, but still remains its owner, while the mortgagee has only a lien thereon. (Civ. Code, sec. 2888; Bank of Ukiah v. Moore, 106 Cal. 673, 39 Pac. 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 mortgagor and mortgagee. In the absence of any express agreement upon the subject, the lien created by a mortgage is limited to- the prop
This case was supplemented by the later case of First Nat. Bank v. Erreca, 116 Cal. 81, 58 Am. St. Rep. 133, 47 Pac. 926, wherein the facts relative to the time at which the offspring were begotten are like those in the case at bar. In that case the court said: “The present case presents a question which was not involved or decided in that case, i. e., whether the lien of the mortgage includes lambs in gestation at its date, but upon the principles of that case it must be held that they are not so
We think these eases correctly state the rule of law, and we adopt the conclusions reached, together with the reasons assigned therefor.
Section 3898 of the Civil Code reads as follows: “The increase of property pledged is pledged with the property.” Counsel for appellant contends that this legislative language ought to be interpreted as showing an intention to lay down a different rule as to pledges from that pertaining to chattel mortgages. We are inclined to think there is merit in the suggestion.
On "the part of the respondent our attention has been directed to section 3815 of the Civil Code, reading as follows: “A mortgage is a lien upon everything that would pass by a grant of the property.” It is contended that the foregoing language, applied to this case, means that the lien of the mortgage attached to the calves in question. This section is found in the Code under the following article-heading: “Mortgages in General.” It applies, therefore, to both real estate and-chattel mortgages. There is this analogy between real estate and chattel mortgages, that both are simply liens. (Hull v. Diehl, 21 Mont. 71, 52 Pac. 782.) A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage. (Civ. Code, sec. 3816.)
While in possession of mortgaged real property the mortgagor may collect and appropriate to his own use the rents and profits thereof. (20 Am. & Eng. Ency. of Law, 2d ed., p. 979, and cases cited.) Growing crops may be the subject of chattel mort
The statute referred to by the learned counsel is comprehensive, and the construction to be placed upon it should be reached only after full consideration in any particular case in which it may be invoked. We do not think it wise or necessary in this case to construe it further than to hold that it does not apply to the natural increase of domestic animals by procreation. We think, if the legislature had intended that the lien of a chattel mortgage describing particular animals should attach to their young thereafter to be born, it would have said so plainly, as it did in the case of a pledge. In the absence of such a declaration it seems reasonable to hold that because the mortgage is simply a lien passing no title, the mortgagor in possession has the right to deal with the property as his own, and in the case of domestic animals may dispose of the young not mentioned in the mortgage as he sees fit. This construction leaves to the mortgagee the security described in the mortgage, and does away with the confusion that experience- has taught invariably follows the adoption of any other rule. If, in eases like this, it be intended to include the offspring, the mortgage should so state.
The judgment of the district court of Missoula county is reversed and the cause is remanded, with instructions to vacate the order sustaining the demurrer to the appellant’s answer, and to enter an order overruling the. same.
Reversed and remanded.