PUISSECUR v. YARBROUGH

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District Court of Appeal, Second District, Division 2, California.

PUISSECUR v. YARBROUGH et al.

Civ. 14972.

Decided: December 05, 1945

Fred W. Heath and Daniel A. Knapp, both of Los Angeles, for appellants. J. M. Clements, Thomas Higgins, Robert E. Austin, and John N. Helmick, all of Los Angeles, for respondent.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to have a deed of trust foreclosed as a mortgage, defendants appeal.

The undisputed facts are these:

On November 12, 1938, defendant Yarbrough executed a promissory note in favor of Melanie D. Woodd in the sum of $800, also a trust deed, covering certain real property, to secure the payment of the note. The promissory note was to be paid in monthly installments of $10 each. The note was placed with the Security First National Bank of Los Angeles for collection. There was an action pending in the Superior Court of Los Angeles County No. 435,718 in which plaintiff herein was one of the plaintiffs and Melanie D. Woodd was defendant. On June 19th and 20th, 1940, a writ of execution predicated upon a judgment against defendant Woodd in action No. 435,718 was served upon the Security First National Bank and defendants herein attaching all moneys, goods, credits, effects, debts due or owing, or any other personal property belonging to Melanie D. Woodd in the possession or under control of the Security First National Bank. The sheriff's return on the execution read as follows:

‘On June 19, 1940, I duly attached all moneys, goods, credits, effects, debts due or owing, or any other personal property belonging to defendants therein named in possession or under control of Security First National Bank of Los Angeles, 561 South Spring Street, Los Angeles, California, to which I received the answer hereto attached.’

On September 15, 1940, Melanie D. Woodd assigned the above mentioned promissory note to M. L. Hovey. Subsequent to this assignment the promissory note and deed of trust were delivered to the sheriff who at a later date at a sheriff's sale sold the note and trust deed to plaintiff herein.

According to an agreement of the parties at the time of the oral argument before this court the question presented for our determination was conceded to be:

Did the execution levied on the Security First National Bank on June 19, 1940, constitute a lien upon the promissory note and trust deed described above, since the promissory note and trust deed were retained in the possession of the bank and not delivered to the sheriff until subsequent to the assignment of the note by Melanie D. Woodd to H. L. Hovey?

This question must be answered in the affirmative and is governed by these pertinent rules of law:

(1) Debts, credits and other personal property not capable of manual delivery are attached by leaving with the person owing such debts, or having in his possession or under his control such credit a copy of the writ and a notice that the debt owing or the credit or other personal property not capable of manual delivery is attached pursuant to such writ. (Section 542, subdivision 6 of the Code of Civil Procedure.)

(2) A note is not a debt. It is only primary evidence of a debt, the debt itself being the intangible obligation which the debtor owes to the creditor and which the creditor has the right to enforce in an appropriate action. The note is merely written evidence of the debt or obligation. (Johnston v. Wolf, 118 Cal.App. 388, 391, 5 P.2d 673; Bagley v. Eaton, 10 Cal. 126, 148 et seq.; 16 Cal.Jur. [1924] page 690, sec. 2.)

Applying the foregoing rules to the facts in the instant case, it is clear that under rule 2, supra, the obligation which was attached was intangible personal property not capable of manual delivery, therefore under rule 1, supra, the lien of the execution became effective when the sheriff delivered to the bank a copy of the writ of execution and a notice that the trust deed and note in its possession and under its control beloging to Melanie D. Woodd were attached. It was not necessary in order to constitute a valid lien of attachment that the bank deliver the note and trust deed to the sheriff since they were merely evidence of the obligation and not the obligation itself.

In view of our conclusions it is unnecessary to discuss any other phase of the cause.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.