Meyer v. Gorham , 5 Cal. 322 ( 1855 )

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

The statute of frauds of this State enacts that “ no mortgage of personal property hereafter made shall be valid against any other persons than the parties thereto unless possession of the mortgaged premises be delivered to and retained by the mortgagee.”

The mortgage relied upon in this case stipulates for the enjoyment of the possession by the mortgagors until broach of the condition; it would, therefore, according to its terms be invalid under the statute as to all persons except the parties to it.

It is insisted, however, notwithstanding the stipulation for the retention of possession by the mortgagors that possession was actually and immediately delivered to the mortgagee, and that therefore the intent of the statute is accomplished, and the case taken without its influence. But the question here arises, by what right was possession taken by the mortgagee ? Ho contract, concurrent or subsequent to the execution of the mortgage is made to appear by which any greater authority was conferred than that contained in the mortgage.

The latter, by express agreement, reserves to the mortgagors a leviable estate, an equity of redemption with the right of possession until the law day of the mortgage.

The plaintiff cannot claim against the Sheriff by virtue of the mortgage, for as yet there is no breach of condition. He cannot claim by virtue of his possession, because the covenants of the mortgage show that he was not entitled to possession, and he has not shown that he -was entitled in any other manner.

When this case was first submitted, the question on which the decision rests was not brought to the attention of the Court.

The judgment is reversed and the cause remanded.