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District Court of Appeal, Fourth District, California.


Civ. 1239.

Decided: April 13, 1934

Barbour, Kellas & Backlund, of Fresno, for appellant. N. Lindsay South, of Fresno, for respondent.

Respondent was the mortgagor and appellant the mortgagee in a chattel mortgage on certain cattle. The mortgage was foreclosed, the security exhausted, and a deficiency judgment entered against the mortgagor. An execution was issued and a levy made by the sheriff of Fresno county on seventeen saddles, twenty–two bridles, eighteen saddle blankets, three hackamores, and packing equipment.

Gene Southard filed a third party claim in which he asserted title to the above–described personal property. A hearing was had on petition of appellant to determine title, and the trial court found “that the claimant Gene Southard, purchased the personal property hereinafter described from George W. Pierson, * * * on or about the 24th day of December, 1931; that at said time the said George W. Pierson had the possession and control of said personal property; the Court further finds that at the time of said sale the said George W. Pierson did not deliver said personal property to said claimant Gene Southard, and that there was no actual and/or continued change of possession of said property made from the said George W. Pierson to the said Gene Southard; and the Court further finds that the petitioner herein, Security First National Bank of Los Angeles, a National Banking Corporation, was, ever since has been, and is now, a creditor of said George W. Pierson,” and held that the property was subject to the levy of the execution.

Subsequently other third party claims were filed for three each of the saddles, bridles, and saddle blankets, and they were released from the levy upon stipulation.

Respondent then made a motion to release the remaining property from the levy on the ground that it was exempt property under the provisions of subdivision 3 of section 690 of the Code of Civil Procedure. This motion was heard on affidavits. The trial court held that the fourteen saddles, nineteen bridles, and fifteen saddle blankets were exempt personal property, and ordered them released from the levy. This appeal is taken from that order.

The major portions of the briefs filed here are devoted to discussions of the question of whether or not the saddles, bridles, and saddle blankets were “implements of husbandry of the judgment debtor” (subdivision 3, § 690, Code Civ. Proc.); it being admitted that their value was less than $1,000. Respondent confidently asserts that he was a farmer engaged in growing fruit, grapes, hay, and grain, producing milk, and in raising horses and cattle on a large range; that the personal property was necessary for use in his vocation; that it composed, therefore, implements of husbandry and was exempt from execution. In our consideration of the question before us, we will first assume this contention to be founded in fact.

If the property was exempt from execution, the order of the trial court on the hearing to determine title to the property upon the filing of the Gene Southard third party claim was erroneous. The order was made on the theory that there was no sufficient delivery of possession of the property from Pierson to Southard to satisfy the provisions of section 3440 of the Civil Code. The last clause of the section provides that it shall not apply “to any sale, transfer, assignment or mortgage of any property exempt from execution.” It has been held that, where exempt personal property has been sold by a vendor in possession without “an immediate delivery, and followed by an actual and continued change of possession,” title passes to the vendee enabling him to maintain an action against the sheriff for conversion, accomplished by taking the property on an execution issued under a judgment against the vendor. In Williamson v. Monroe, 174 Cal. 462, 163 P. 662, 663, it was said: “The plaintiff contends that, under these provisions, the farming utensils and property used on the farm as above stated are not subject to the provisions of the section, that a sale thereof in good faith, although not accompanied by an immediate delivery to the vendee or followed by an actual and continued change of possession, is not fraudulent or void, as there declared. We can see no escape from this conclusion. The language of the proviso is clear. In the absence of the restrictions placed upon sales of personal property by the opening clause of the section, a valid sale thereof could be made which would pass the title without delivery. Civ. Code, §§ 1140, 1141, 1721, 1739. A bill of sale was duly executed by Fonnesbeck to Williamson on November 14th, and the title passed to Williamson thereby, unless these restrictions applied to prevent it. As the proviso declares that these restrictions do not apply to property exempt from execution against the vendor, it necessarily follows that Williamson's title was perfect to all the property of that class included in the sale, even if there was no immediate actual delivery or change of possession. The sheriff had no right to levy upon this property, even if Fonnesbeck had been openly in possession thereof, if it then belonged to Williamson.”

If the property was exempt from execution, the order made on the third party claim of Gene Southard was erroneous, but the question of the property being exempt does not seem to have been raised at that time. The order was allowed to become final.

The provisions of subdivision 3 of section 690 of the Code of Civil Procedure providing exemptions to various classes of property to debtors create a privilege in favor of a debtor who is the owner of the exempt property. Possession, coupled with the right of use, is not sufficient to enable the debtor to claim the exemption without there being the additional right of property in the article exempted. Stanton v. French, 83 Cal. 194, 23 P. 355; Stanton v. French, 91 Cal. 274, 27 P. 657, 25 Am. St. Rep. 174. In no affidavit filed by or on behalf of respondent is it asserted that Pierson had any property interest in any of the saddles, saddle blankets, or bridles at the time of the levy of the execution or at any time thereafter. The trial court did not find that Pierson had any such interest in the property. The whole record would support a contrary conclusion. The order cannot be sustained without some showing that Pierson had an interest in the property. There being no such showing, the claim of exemption cannot be supported.

Order reversed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.