B. A. FASSETT, Appellant, v. JOHN H. WISE, et al., Respondents, 115 Cal. 316

Temple, J. This case involves the right of defendants to seize under attachment against Nunes a certain flock of sheep. Nunes owned the sheep, but it is claimed that plaintiff had a chattel mortgage upon them and the levy was made regardless of the alleged mortgage. Christy & Wise were creditors of Nunes, and the question is whether the mortgage was valid against creditors, and this depends upon the question whether it had been recorded as required by law. The mortgage was executed on the fourteenth day of March, 1894, in Kings county, where the sheep then were and where Nunes then resided.

The property was removed to Tulare county April 3d following, the mortgage not yet having been recorded anywhere. The mortgage was recorded for the first time in Kings county on the 28th of the same month, at 4:30 p. m. At 5:30 p. m. of the same day the property was attached in Tulare county at the suit of defendants. On the 30th of the month—that is, two days after the attachment— the mortgage was recorded in Tulare county. The Civil Code,

section 2957, prescribes that the mortgage shall be void as to creditors unless recorded.

Section 2959 reads as follows: “ A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor resided, and also of the county in which the property mortgaged is situated or to which it may be removed.” In

section 2965 it is provided that, in case property mortgaged shall thereafter be removed to another county, it shall be void as to creditors unless it is recorded in such county within thirty days after the removal, or the mortgagee shall take possession as provided in the next section. For the plaintiff it is contended that the provision in

section 2959, that the mortgage must be recorded where the mortgagor resides, and where the property is situated, refers to the time of the execution of the mortgage, and that if the mortgage is recorded in those places before there are intervening rights, it becomes operative as to the whole world, although when recorded in the county where the property was situated at the time of the execution of the mortgage the property had been removed to another county. That

section 2965 then comes into effect, and the mortgagee has thirty days after the removal of the property within which to record the mortgage in the county to which the removal .was made. I cannot agree altogether with this conclusion. I think the recordation directed in

section 2959 is that required by

section 2957 to render the mortgage operative at all as against creditors. On the other hand,

section 2965 plainly speaks of a removal which has taken place after the mortgage has been recorded so as to be effectual against creditors. The clause, therefore, “or to which it may be removed,” cannot be helped out or explained by reference to

section 2965. The recordation provided for in that clause must be one which may, with other acts, avail to make the mortgage operative as to creditors and others in the first instance.

Section 2965 adds a.sort of condition subsequent, which, if not complied with, may defeat the mortgage after it has been recorded so as to be operative as against creditors. I am inclined to agree with the construction to the extent of holding that “resides” and “is situated” refer to the time of the execution of the mortgage. That construction seems in accord with authority so far as we have authority upon that subject, and is, I think, the natural import of the language used. (Jones on Chattel Mortgages, sec. 267; Cobbey on Chattel Mortgages, sec. 573; Pingrey on Chattel Mortgages, sec. 362; First Nat. Bank v.

Weed, 89 Mich. 357.) I think that it was intended that the mortgage should be recorded at once, and, in such case, it would be recorded where the mortgagor then resided and where the property was then situated. But even if the mortgagee were to use due diligence in the recordation of his mortgage, still, if two records are required, both records cannot be made at once, and it has been elsewhere held that, even if not recorded at once, it is not void but becomes operative, as against creditors and others, when it is recorded as required by law.

It is not easy to give a definite meaning to the clause “or to which it may be removed.” It is evidently highly elliptical. Something must be supplied. If I am right in the position that it cannot refer to a removal after the mortgage has once been recorded so as to be in force as against creditors, then it must refer to a removal after the execution of the mortgage, but before it has been properly recorded.

It means, I think, simply this: “ Or, if the property has been removed to another county, then in the recorder’s office of that county.” That is to say, if the property has been removed to another county after the execution of the mortgage, and before it has been recorded in the county where the property was situated at the time of its execution, then it must be recorded in the county to which the property has been so removed. Otherwise it is void as to creditors and subsequent purchasers and encumbrancers in good faith.

In this case the property had been removed to Tulare county before the mortgage was recorded in Kings county, and the mortgage had not been recorded in Tulare county at the time of the levy. It was, therefore, void as to creditors, and Christy & Wise, it is found, were creditors. It may be added that the property, during the whole time, remained in the possession of the mortgagor until the levy. The judgment is affirmed. Harrison, J., and Henshaw, J., concurred.