254 P. 262 | Cal. | 1927
Lead Opinion
A petition to have this cause heard in the supreme court after judgment in the district court of appeal, third appellate district, was granted in order that further argument might be had on the question therein involved. After further consideration of the case, we are of the view that the decision of the district court of appeal was correct. The following portion of the opinion by Mr. Justice Plummer is therefore adopted as the opinion of this court:
"The facts necessary to be stated are in brief as follows: The defendant Charles F. Silva, the owner of a band of cattle, made, executed and delivered to the plaintiff a chattel mortgage thereon. Thereafter, and on the first day of September, 1923, the defendant Silva placed said cattle in the possession of the defendants Donnelly and Clark, for pasturage purposes upon pasture lands belonging to said defendants. Said cattle were pastured by Donnelly and Clark until the first day of December, 1923, and they claim an agistor's lien for the value of the pasturage in the sum of $1890. The amount of this claim is not disputed. The only question involved is whether an agistor's lien takes precedence of a prior chattel mortgage.
"Section
"Some of the cases also distinguish between what are purely common-law liens and statute liens. In this case, however, whether formerly existing as common-law liens or otherwise, a large number of liens, including the lien of agistors, are grouped together and provided for in the same section of the Civil Code. Section
"Section
"If by section
"The case of Guinn v. McReynolds,
While it may be contended by appellant, the weight of authority in other jurisdictions is against giving precedence to any of the lienholders mentioned in section
The conclusion we have reached makes it unnecessary to consider the further contention of the respondents that the appellant gave express or implied consent that the bill for pasturage should constitute a lien superior to that of the chattel mortgage.
The judgment is affirmed.
Curtis, J., Langdon, J., Preston, J., Seawell, J., and Richards, J., concurred.
Dissenting Opinion
I concur in the judgment on the ground that the record discloses that appellant assented to the creation of a statutory lien preferment as against itself. The facts were stipulated. On the first day of September, 1923, the respondents Donnelly and Clark became the lessees of 13,760 acres of land in Madera County formerly held under lease by the respondent Silva. While in possession of the premises Silva had mortgaged some 700 head of cattle to the plaintiff's assignor with the usual provision in the mortgage that on the default of the mortgagor the mortgagee would have the right to take possession of the mortgaged property without notice. On September 1, 1923, Silva was in default and the cattle were on said premises. On that day Donnelly and Clark notified the appellant that they were informed that the appellant had an interest in said livestock and that from September 1, 1923, a charge of one dollar per head per month would be made against the appellant for pasturage. Under date of September 5th the appellant's representative notified Donnelly and Clark that the cattle would be removed in ten days. They were not removed and when on November 22, 1923, their possession was demanded by the appellant such possession was refused on account of nonpayment of pasturage charges. Under these circumstances the implied consent of the appellant that pasturage charges would accrue *503 and the lien thereof attach would seem to have been satisfactorily shown.
But I cannot agree that under our law an agistor's lien has priority over a pre-existing recorded chattel mortgage. It is conceded that an agistor's lien did not exist at common law and the well-established rule is not questioned that under a statute which creates a lien which did not exist at common law such lien has no priority unless plainly authorized by the statute which creates it. Sections