Boyle Ice Machine Co. v. Gould

Headnote

Mortgage of Leasehold Estate — Priority of Mortgagee against Subsequent Assignee or Purchaser. — Where a lessee -executes a mortgage of Ms leasehold estate, and of certain machinery erected thereon by Mm, which mortgage purports to be of the fee of the leased premises, and is duly recorded as such, the mortgagee thereunder is entitled to priority in the mortgaged property, both as against a subsequent assignee of the lease and a subsequent purchaser of the machinery at an execution sale against the lessee.

Appeal from a judgment of the Superior Court of Los Angeles County.

On January 1,1884, the defendant Gould and Sweeney leased the land described in the complaint for the term of ten years, and in March of the same year erected thereon an ice-machine, which Gould had purchased of the plaintiff, and for the part payment of which he had executed his promissory notes. On the 3d of May, 1884, Gould and Sweeney mortgaged the land described in the lease, and the machinery erected thereon, to the plaintiff, to secure the payment of the notes. The mortgage was in form a mortgage in fee of the land, and was recorded as such on the day of its execution. Subsequently a judgment was obtained against Gould in the Superior Court of the city and county of San Francisco, under which the machinery was levied upon on execution, and sold as personal property to one C. H. Shillaber, to whom Gould and Sweeney afterwards assigned their lease. The present action was brought to foreclose the mortgage to the plaintiff. The defendant Cook, as the special administrator of the estate of C. H. Shillaber, was made a party, and answered, setting up the execu

tion sale and the assignment of the lease, and claiming thereby to be the owner of the property discharged of the lien of the mortgage. The plaintiff demurred to the answer, the demurrer was sustained, and judgment rendered in favor of the plaintiff.