as to chattel mortgages, or mortgages on personal property, the method of their execution is provided as well as the effect of nonrecordation, differing essentially from cases of mortgages on real property.

Section 2957 is as follows: "A mortgage of personal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless: 1. It is accompanied by the affidavit of all the parties thereto, that it is made in good faith and without any design to hinder, delay, or defraud creditors; 2. It is acknowledged or proved, certified and recorded in like manner as grants of real property."

It will be perceived that under the section quoted the mortgage, unless it is recorded, "is void as against the creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value." The defendant was a creditor of the mortgagor. In order for the mortgage to be void against subsequent purchasers and encumbrancers it is requisite that they be such in good faith, that is to say, with an honest intention to abstain from taking any unconscientious advantage of another, together with an absence of all information or belief of facts which would render the transaction unconscientious. The terms good faith and bona fide purchasers are borrowed from equity jurisprudence, and it is said must be interpreted accordingly. (Wells v. Smith, 2 Utah, 52; Alden v. Trubee, 44 Conn. 459; De Mott v. Starkey, 3 Barb. Ch. 406; Spicer v. Waters, 65 Barb. 231.)

The foregoing remarks apply to chattel mortgages under the statutes and where no delivery of possession of the property mortgaged to the mortgagee has been made.

The contention of appellant is that the term creditors, as used in the statute quoted supra, is modified by the terms, in good faith and for value, equally with the words subsequent purchasers and encumbrancers.

In other words, the position of appellant is that cred

CVIII. Cal.—17

itors, like mortgagees and subsequent purchasers, must be such in good faith, and that there can be no good faith in such a case where the creditor as here has actual notice. Chattel mortgages in this state, which are not recorded, are absolutely void except in the cases provided for in the statute. Recording the instrument takes the place of the delivery of possession of the mortgaged chattels. (Berson v. Nunan, 63 Cal. 550.) Their validity depends as much upon their proper acknowledgment and registration as upon their execution and delivery. Under the law of this state as it formerly existed such mortgages, unless recorded, were void as to all the world except the parties thereto. Now they are valid as to all the world except the two enumerated classes, viz., creditors, and subsequent purchasers and encumbrancers of the property in good faith and for value. The term creditor signifies "a person to whom a debt is owing by another person called the debtor." (Black's Law Dictionary.)

In the general and extensive sense of the term he is a creditor who has a right by law to demand and recover of another a sum of money on any account whatever. (Stanley v. Ogden, 2 Root, 261.)

The term good faith, as applied to a purchaser ex vi termini, means one who purchases without notice and for value. (Black's Law Dictionary.)

This term has no natural application to a creditor who is of necessity such for value; and without value, either express or implied, he is not a creditor. No sufficient reason is discerned for supposing that the lawmakers intended to modify the term creditor by the language naturally applying to subsequent purchasers and encumbrancers.

The term creditors is general, and applies to creditors existing prior to the mortgage, as well as subsequent. A prior creditor could not have had notice, at the time of advancing his money or other value to a debtor, of a mortgage which did not then exist, and as against him the equities which may be invoked against a subse

quent purchaser or encumbrancer with notice and for value have no existence.

Non constat, but that the creditor may have trusted his debtor upon the faith of the property sought to be mortgaged.

This is not urged as a reason as against the statute if it has in fact included the creditor, but rather as a solution in his favor, where the most that can be said is that a doubt is created by the language used. The adjudicated cases in the several states seem at first glance to involve a marked difference of opinion on the subject; but, upon more careful examination, it is believed the divergence is mainly attributable to the different wording of the statutes of the several states, and in those jurisdictions where their statutes are precisely or practically similar to our own we find it usually held that an unrecorded mortgage is void as against a creditor of the mortgagor, although he have actual notice. Thus, in New York, where the statute provides that, upon failure to record, the mortgage "is void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith," it is held that, as against creditors of the mortgagor with notice, the mortgage is void. (Farmers' Loan etc. Co. v. Hendrickson, 25 Barb. 484; Stevens v. Buffalo etc. R. R. Co., 31 Barb. 590; Karst v. Gane, 136 N. Y. 316.)

In South Dakota, with a statute almost identical with our own, the supreme court in Kimball v. Kirby, 4 S. Dak. 152, held that the lien of an execution takes precedence of an unrecorded chattel mortgage, irrespective of whether or not the judgment creditor had actual notice of the unrecorded chattel mortgage. New Jersey, Texas, Nebraska, and Ohio, with similar statutes, have held similarly. (Williamson v. New Jersey etc. R. R. Co., 29 N. J. Eq. 336; Sayre v. Hewes, 32 N. J. Eq. 656; Brothers v. Mundell, 60 Tex. 246; Earle v. Burch, 21 Neb. 702; Cooper v. Koppes, 45 Ohio St. 625.)

In Iowa the language of the statute is: "No mortgage of personal property. . . . is valid against

existing creditors or subsequent purchasers without notice, unless," etc.

And the supreme court of that state held in Allen v. McCalla, 25 Iowa, 464, 96 Am. Dec. 56, that a mortgage of personal property duly executed though not recorded, etc., was valid as against existing creditors with notice of the mortgage. In this last case the court, in alluding to the different construction given to the statutes of Ohio, New York, Massachusetts, and other states, said this difference "grows out of the different, not to say peculiar, language of the statutes of those states.'

Jones, in his work on Chattel Mortgages, at section 318, uses the following language:

"Under the statutes of some states notice of a mortgage not filed does not affect creditors, but does affect subsequent purchasers and mortgagees. Good faith is not required of creditors in order to enable them to avoid such a mortgage.

"This distinction is founded upon the terms of the statutes. Thus in New York the statute declares that such a mortgage is 'void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith.'

"Subsequent purchasers and mortgagees are not protected unless they take their conveyance in good faith, and they cannot take them in good faith if they have actual knowledge of the existence of an antecedent mortgage.

"But as against creditors such a mortgage is declared void without qualification. And, therefore, mere knowledge on the part of a creditor that his debtor has executed a mortgage which has not been duly filed does not preclude him from availing himself of the objection that it is for this reason void. . .

"The statute of New Jersey makes a similar distinction between creditors and subsequent purchasers and mortgagees. Such is also the law of Ohio and Texas."

California and several other states may be mentioned as having statutes similar in structure with those men

tioned. We are in accord with the rulings of other states having like statutes, in holding as we do that our statute has created two classes of persons, of which creditors are one and bona fide purchasers and encumbrancers the other, and that the expression "in good faith and for value" modifies the latter and not the former. It follows that the actual knowledge on the part of the defendant of the existence of the unrecorded mortgage of the plaintiff did not as against said defendant validate the mortgage or prevent the priority of his attachment lien.

The judgment and order appealed from should be affirmed.

HAYNES, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. HENSHAW, J., MCFARLAND, J., TEMPLE, J.

[No. 18330. Department One.-July 27, 1895.]

LAKESHORE CATTLE COMPANY, RESPONDENT, v. MODOC LAND

APPELLANT.

AND

LIVESTOCK

COMPANY,

PLACE OF TRIAL-CORPORATION.-Under section 16 of article XII of the constitution, an action against a corporation may be brought in the county where the obligation sued on arose, and a motion to change place of trial to the county where the principal place of business of the corporation is situated is properly denied. ID.-APPEAL-CONFLICT OF EVIDENCE-REFUSAL TO CHANGE VENUE.— Where the facts alleged in the complaint, showing that the obligation sued on arose in the county where the action was brought, are controverted by an affidavit of the defendant, the supreme court cannot, in view of such conflict, interfere with the order of the trial court refusing to change the place of trial.

ID. NOTICE OF MODE-REFERENCE TO COMPLAINT.-The trial court may properly consider the allegations of the complaint in determining the motion for the change of the place of trial, where the defendant's notice of the motion stated that it would be based upon certain affidavits, "and upon all the papers, files, records, and proceedings" in the action.