Fassett

I dissent. I agree with the construction of the statute contended for by plaintiff.

I concur in the judgment of affirmance, and in most of the opinion of Mr. Justice Temple. I do not think that a chattel mortgage, which has never been recorded in the county where the property was situated at the time of the recordation, is good against a creditor or subsequent purchaser. Surely the latter is entitled to some reasonable opportunity of discovering whether or not there is a recorded mortgage on property which he contemplates buying or attaching. Upon inquiry, he learns that the property has, for several weeks, been in the county where it then is, and that there is no recorded mortgage in that county. Inquiring further, he finds that the property had several weeks before been brought from another county, where it had been continuously for several months previous to that time, and no mortgage had been recorded there-He thus learns that there has been no mortgage recorded in either county, and that there then could be no valid recordation except in the county where the property was then situated. Under these circumstances he could, in my opinion, safely proceed to purchase or attach. Section 2959 is no doubt somewhat obscure; but I think it is intended to provide for a…

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 *319 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…

facts may be stated briefly as follows:

Upon the foregoing statement of facts the only question presented is: Was the mortgage of plaintiff recorded in the manner required by law, before the levy of the attachment under which the defendants justify? For, if it was so recorded, then plaintiff is entitled to a judgment upon the findings. And the solution of this question is dependent upon the true construction of two sections of the Civil Code. These sections read:

A fair construction of section 2959 is that the mortgage must be recorded in the county where the mortgagor resides at the time of its execution. And, if the property is situated in a different county at that time, then the mortgage must also be recorded in the county where the property is then situated. Jones on Chattel Mortgages, section 251, says: “ It is the place of residence of the mortgagor at the time the mortgage is executed, and not his place of residence at the time it is recorded or filed, that determines the place where it should be recorded or filed.” Cobby on Chattel" Mortgages, section 575, says: “ The place of residence at the time it is executed, and not at the time it is filed, is what governs.” While…