24 Or. 2 | Or. | 1893
delivered the opinion of the court.
1. The respondent contends that the clause of the lease above quoted created a lien upon all the personal property on the leased premises, which in equity should be treated as a chattel mortgage. The said clause does not create a chattel mortgage, because the title to the property was not transferred; nor does it create a pledge, because possession thereof was not delivered. It was formerly held in this state that a chattel mortgage created only a lien upon personal property: Chapman v. State, 5 Or. 435; Knowles v. Herbert, 11 Or. 240 (4 Pac. Rep. 126): but in Case Threshing Machine Co. v. Campbell, 14 Or. 465 (13 Pac. Rep. 324), this court, by Thayer, J., in our judgment, announced the correct doctrine, and held that a chattel mortgage created more than a lien, and that the mortgagee after condition broken has a right to the thing, which he may maintain by an action in the nature of replevin, to recover it, if, upon demand, delivery thereof be denied.
2. In a clause of a written agreement which provided that in case of default the parties were authorized “ to take immediate possession of ail goods, wares, and merchandise, lumber and shingles, and the personal property, now in our possession, and belonging to us,” it wras held that it was nothing but a naked power, not coupled with any interest, and could not operate to give any right to the property itself until reduced to possession: Holmes v. Hall, 8 Mich. 66 (77 Am. Dec. 444). Where a stipulation of a lease provided that “ all goods, wares, and merchandise, household furniture, fixtures, or other property which are, or
3. The claim being a lien, and creating no property right, nor interest analagous to property, but only a mere personal right and obligation, by means of which the plaintiff is entitled to follow the identical thing, and to enforce the defendant’s obligation by a remedy which operates directly upon the thing itself (3 Pomeroy Eq. Jur. § 1234), can this remedy be enforced .against one who has acquired the thing without notice of the plaintiff’s claim? In the case of Fejavary v. Broesch, 52 Iowa, 88 (2 N. W. Rep. 963; 35 Am. Rep. 261), Seevers, J., in construing a similar clause 'n a lease which provided that the lessor should have a perpetual lien upon certain personal property, as security for rent, says: “Technically, it is said, the instrument in this case cannot be regarded
4. Was the specification in the lease of “all personal property in said premises, including furniture and household goods of every description,” sufficient to create a lien? Mr. Jones, in his work on Chattel Mortgages, section 54, says: “A description which will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient.” “The identity of the property is not, in such cases, ascertained by any specific description which distinguishes it from other property of the same kind or species, but by its locality”: Lawrence v. Evarts, 7 Ohio St. 194. “Apparently it seems a more bald description to say ‘all my household furniture,’ than to enumerate the articles and describe them as ‘two dozen of chairs, five tables,’ etc.; but in reality the latter will require extrinsic evidence to identify the property as much as the former would”: Harding v. Coburn, 12 Met. 333 (46 Am. Dec. 680). Thus it would appear that the description, “furniture and household goods,” was sufficient (Beach v. Derby, 19 Ill. 617)
5. The defendant Barnes contends that Sengfelder’s mortgage to Thompson was fraudulent. It is true that Sengfelder was in failing circumstances, and no doubt Thompson had a better knowledge of this fact than any other creditor; but would this make the transaction fraudulent? If Sengfelder had given his mortgage to the bank to secure the note it held against him, no one would contend that such act would have been fraudulent. A debtor in failing circumstances may prefer a creditor, and appropriate his property to the satisfaction of such creditor’s claim: Kruse v. Prindle, 8 Or. 158; Burrill, Assignments, 218; Bump, Fraudulent Conveyances, 314. When Thompson secured the assignment of the note from the bank he had a bona fide claim against Sengfelder, and, since the’ latter could have preferred the bank, he could, in like manner, have preferred Thompson. When the mortgage was executed and filed, Thompson demanded payment of the note, and, upon default, took immediate possession of the chattels. This gave him a conditional title to the goods, and the possession thereof, for the purpose of foreclosing his mortgage, and such possession was taken before any attachments were levied.
6. Some testimony was taken for the purpose of showing that Sengfelder’s mortgage to Thompson was executed for a fraudulent purpose. The officer who levied the writ of attachment for Barnes swears that when he went to the restaurant for that purpose Sengfelder requested him not to close up the place, while the latter swears that such request was made upon the levy of a former writ. Admitting that he made this request at that time, this does not,
7. Sengfelder swears, in relation to the attempt to remove the goods to pay the help, that Geo. W. Hazen, the agent of the bank, who had known Mr. Thompson for several years, told the latter that the law required attaching creditors to pay the help, and that Mr. Thompson was trying to observe Mr. Hazen’s advice. The Session Laws of 1891, p. 81, provide that when goods are attached the laborers in defendant’s employ shall have a preferred claim, within certain limits as to time and amount; but while the attached goods could not have been appropriated in the summary manner here attempted, we do not think Thompson’s act indicated an intent to protect Sengfelder.
There was some testimony taken before the referee which tended to prove that the defendant, Sengfelder, with the knowledge of plaintiff, sold in the ordinary course of business articles of personal property, consisting of stock in trade, but the pleadings having raised no issue upon this question, it was properly held irrelevant.
The decree of the court below will be modified in accordance with this opinion.