112 Cal. 215 | Cal. | 1896
June 22, 1893, one Cascalia executed a mortgage to the plaintiffs’assignor upon a band of sheep which were then in Kings county, consisting of seventeen hundred ewes and ten hundred and fifty lambs. The sheep were afterward removed to Tulare county,
It has been held in some states that the lien of a mortgage of domestic animals extends to the increase of the animals during the life of the mortgage, whether the terms of the mortgage include such increase or not, and, following these decisions, such a rule is stated in text-books upon chattel mortgages. It will be found, however, upon examination of these cases, that the decisions therein are based upon the principle of the common law, which was in force in those states, that by the mortgage the mortgagee is vested with the title to the mortgaged property, and becomes the owner thereof; and that in the case of domestic animals, applying another rule of both the common and the civil law, that “ the brood belongs to the owner of the dam or mother—partus sequitur ventrem” (2 Blackstone’s Commentaries, 390), he thereby becomes the owner of such increase, and, being the owner, his title in any action at law must prevail. The earliest application of this rule was in the case of a mortgage of a female slave (Hughes v. Graves, 1 Litt. 317), which was decided in Kentucky in 1822, and was afterward followed in Maryland in 1836, in the case of Evans v. Merrihen, 8 Gill & J. 39, which also involved the offspring of a female slave which had been mortgaged; and these cases are cited as the authority upon which cases involving the same ques
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
We are not called upon to determine in the present case whether, if the lambs in question had been in ges
The conclusion thus reached renders it unnecessary to consider the rulings of the court upon the offer of the plaintiffs to show that the defendant had knowledge of the mortgage at the time he purchased the lambs.
The judgment and order are affirmed.
Van Fleet, J., and Garoutte, J., concurred.