Opinion
Hearing Granted by Supreme Court June 30, 1927.
Appeal from Superior Court, Los Angeles County; John M. York, Judge.
Action by the Mercantile Acceptance Company against Albert L. Frank and others to enforce a chattel mortgage. Judgment for defendants, and plaintiff appeals. Reversed.
COUNSEL
Lewinson & Barnhill, of Los Angeles, C. W. Mullins, of Seattle, Wash., and E. E. Morris, of Los Angeles, for appellant.
L. G. Shelton, of Glendora, for respondents Caulfield and Kling.
Charles L. Evans and Arthur Wright, both of Los Angeles, for respondents Trobert, Herberger and Myers.
OPINION
THOMPSON, J.
This appeal is prosecuted from a judgment for defendants and respondents, after the general demurrer of the appearing defendants, who are the respondents here, had been sustained without leave to amend.
The complaint alleges the execution by the defendant Albert L. Frank, who was not served with process and did not appear, of a chattel mortgage to plaintiff’s assignor, upon the Studebaker automobile sought to be repossessed in the action from defendants, who it is alleged assert ownership by purchase, claiming to have purchased without notice of the mortgage. The complaint further alleges the execution and filing of the mortgage in accordance with the laws of Minnesota, which are set out in detail, and the removal of the automobile to California by Frank without the knowledge of the mortgagee. It also alleges the breach of the provisions of the mortgage entitling the mortgagee to possession, and sets out the mortgage in hæ c verba. It does not appear that the mortgage was recorded in California. The instrument discloses that it was not supported by the affidavits of the mortgagor and mortgagee, as required by the laws of California.
The sole question argued by counsel is whether the mortgage lien created in Minnesota follows the automobile into California, when it is brought here without notice to the mortgagee, and without compliance with the statutes of California. It was recently held in the case of Motor Investment Company v. Breslauer, 64 Cal.App. 230, 221 P. 700, that the lien of a chattel mortgage, valid by the laws of the state where executed, and where the personalty is situated at the time of its execution, is sufficient against incumbrances in good faith. The decision is based upon the rule of comity, and although the mortgage in question there was recorded in California, after discovery of the surreptitious removal of the mortgaged property into California, the mortgage was fatally defective according to the laws of California, because of not being accompanied by the affidavits of good faith required by section 2957 of the Civil Code. This authority is squarely in point and is supported by the weight of authority.
We are mindful of the fact that originally chattel mortgages were not sufficient unless attended by a change in possession (Ruggles v. Cannedy, 127 Cal. 290, 53 P. 911, 59 P. 827, 46 L. R. A. 371), and of the statute which requires recordation of a chattel mortgage in the county to which mortgaged property may be removed from another county of this state within 30 days, providing that for failure thereof the lien shall not be valid against creditors or purchasers in good faith (Hopper v. Keys, 152 Cal. 488, 92 P. 1017). Yet these items are not necessarily inconsistent with the result reached in the case of Motor Investment Co. v. Breslauer, supra. We are satisfied with the rule there announced.
Judgment reversed.
We concur: WORKS, P. J.; JOHNSON, Justice pro tem.