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John A. McQuaid, for appellant. Joseph debt is provable under said act be allowed Kirk and Ford & Burnell, for respondent. to prosecute to final judgment any action
therefor against said debtor until the quesSEARLS, C. This is an appeal by Benja- tion of discharge shall have been determinmin Close from the judgment of the superior ed, and that any and all suits and proceedcourt in and for Humboldt county adjudging ings be stayed until the further order of the him an insolvent debtor, and from an order court; that all persons be forbidden to pay denying his application for an allowance from any debts to said debtor, or to deliver any his estate of money şufficient to employ coun- property belonging to said debtor to him, or sel, pay costs, expenses, etc.
to any person, firm, corporation, or associaThe petition is in the following language: tion for his use; that said debtor be forbid
"In the Superior Court of the County of den to transfer or deliver any property; and Humboldt, State of California. In the Mat- | that such further proceedings may be had as ter of Benjamin Close in Insolvency. Credit- ! the law in such cases prescribes. Jos. Kirk ors' Petition in Involuntary Insolvency. The and Ford & Burnell, Attorneys for Petitionpetition of the hereinafter mentioned creditors respectfully shows: That said respondent, “State of California, City and County of Benjamin Close, is indebted to the following San Francisco-ss.: E. M. Root, C. J. Padpetitioners, all residents of the state of Cal. dock, and Paul Breon, being each severally ifornia: To Root & Sanderson, a partnership, sworn, doth say, on oath, that he is one of in the sum of $537.26, for goods sold aud de- the petitioning creditors in this proceeding; livered to said Benjamin Close within twenty- that he has heard read the foregoing petithree months last past. To H. Levi & Co., a tion, and is acquainted with the contents partnership, in the sum of $136.30, for goods thereof; that the same is true of his own sold and delivered to said Benjamin Close knowledge, except as to the matters therein within twenty-three months last past. To stated upon his information or belief, and Seller Bros. & Co., a partnership, in the sum that as to those matters he believes it to be of $28.89, for goods sold and delivered to said true; that said E. M. Root is a member of Benjamin Close within twenty-three months the firm of Root & Sanderson, one of the pelast past. To Getz Bros. & Co., a partnership, titioners herein; that Paul Breon is a memin the sum of $79.05, for goods sold and de- ber of the firm of Wheaton, Breon & Co., livered to said Benjamin Close within twenty- one of the petitioners herein; that C. J. Padthree months last past. To Wheaton, Breon dock is vice president of J. A. Folger & Co. & Co., a partnership, in the sum of $73.88, (a corporation), one of the petitioners herein. for goods sold and delivered to said Ben- E. M. Root. C. J. Paddock. Paul Breon. jamin Close within twenty-three months "Subscribed and sworn to before me, this last past. To J. A. Folger & Co., a CON- 3d day of April, 1891. Samuel Rosenheim, poration, in the sum of $285.81, for goods Notary Public. [Seal of Notary.)" sold and delivered to said Benjamin Close The respondent therein, who is the appelwithin twenty-three months last past. That lant here, demurred to the petition upon the all said demands accrued in this state. ground that it did not state facts sufficient That all said sums are due and unpaid, and to constitute a cause of action or petition have not been assigned to the petitioners in under the insolvent act of 1880. The dewhole or in part. That said debtor resides murrer was overruled, and such ruling is and has his place of business in said county assigned as error. The petition is sufficient of Humboldt, state of California, and has within the rulings of the court in Wright v. permitted his property to remain under at- Cohn, 88 Cal. 328, 26 Pac. 600, and In re tachment for over four days; and that he is Dennery, 89 Cal. 107, 26 Pac. 639. It shows insolvent, and has so been before and ever that all of the petitioners are residents of since said attachment was levied on his prop- the state of California; that the demands erty. That the said insolvent has no other are due, and accrued in this state; the nature property. That it is necessary for the pres- and amount of their several demands; and ervation of the estate of said debtor that said the other facts required by section 8 of the debtor be restrained from receiving the pay- insolvent law, approved April 16, 1880 (St. ment of any debts, and the delivery of any 1880, p. 82). The demurrer was properly property, and from transferring any proper- overruled. ty; and that all persons, corporations, or as- A motion was also made to strike out the sociations indebted to said debtor, or having petition, “upon the ground that the same is in their possession property belonging to said not verified by three of the petitioners named debtor, be forbidden to make payment of therein." The motion was overruled, and er such debts, or to deliver such property to ror is predicated upon such ruling. As will said debtor, or to any one for the use of said be observed, the affidavit is by three persons, debtor. Wherefore petitioners pray that the one of whom (C. J. Paddock) swears he is said debtor show cause, at a time and place "vice president of J. A. Folger & Co. (a corto be fixed by this honorable court, why he poration), one of the petitioners." Section should not be adjudged insolvent, and the 446 of the Code of Civil Procedure provides, surrender of his estate be made for the ben- in reference to the verifications of pleadings, efit of his creditors; that no creditor whose that, when a corporation is a party, "the verification may be made by any officer two mortgages executed by E. S. Gibson, to thereof.” A vice president certainly is or may secure the payment of a promissory note be an officer of a corporation, and, when he made by him to said bank. One of the mortstates under oath that he is such officer, it is gages was upon certain real property, and sufficient. It is not more necessary for a the other a chattel mortgage upon 3,500 head vice president to set out the fact of his se- of sheep, more or less, and 100 head of neat lection as an officer of the corporation than cattle, more or less, upon a certain ranch thereit would be for the president, secretary, or in described. The court entered a decree in other officer to do so. A vice president, or favor of plaintiff for the foreclosure of the one who acts in the place of and instead of mortgages and sale of the real property and the president, is an officer well known and the neat cattle, but denied a foreclosure as recognized by the law in incorporated com- to the sheep. Plaintiff appeals from so much panies. His statement in an affidavit to a of the decree as denied to it a foreclosure pleading that he is such officer is sufficient and sale of the sheep, etc., described in the to give validity thereto.
complaint and chattel mortgage. The cause The motion on the part of the appellant comes up on the judgment roll, without a here for an allowance of $250 from his es- statement or bill of exceptions. tate to employ counsel and pay expenses, Under these circumstances, the question etc., was properly refused for two reasons: for determination is, do the findings support (1) The law makes no provision for such an the decree? All reference to the mortgage allowance. (2) The petition therefor was in- upon the real estate may be omitted, as no sutficient. It did not show the nature or question is made in regard to it. As to value of the estate. It may well be that the the chattel mortgage, the following facts, sum asked was in excess of the entire assets drawn from the pleadings as admitted and of the estate of the insolvent.
from the findings, will serve to an underThe judgment and order appealed from standing of the legal question involved. On should be affirmed.
the 30th day of June, 1892, at Ukiah city,
Mendocino county, the defendant E. S. GibWe concur: VANCLIEF, C.; BELCHER, C. son made to the Bank of Ukiah, the plaintiff
herein, his promissory note for $29,917.88, PER CURIAM. For the reasons given in payable one year after date, with interest the foregoing opinion, the judgment and or- at 10 per cent. per annum, etc.
To secure der appealed from are affirmed.
the payment of this promissory note, defendant executed to plaintiff a chattel mort
gage upon certain personal property, then (5 Cal, Unrep. 11)
being upon that certain ranch of defendant BANK OF UKIAH y. GIBSON et al. (No. Gibson, in the county of Mendocino, known 15,662.)1
as "Island Mountain Ranch," said personal (Supreme Court of California. April 3, 1895.) property so mortgaged consisting of 3,500
CHATTEL MORTGAGES_VALIDITY-NOTICE. head of sheep, more or less, and 100 head
1. Civ. Code, § 2955, provides for chattel of neat cattle, more or less, being all the mortgages on certain property; and section 2957
sheep and cattle owned by defendant Gibprovides that the record of such mortgages shall be constructive notice, and that mortgages not
son on said ranch. The mortgage was made, recorded shall be void as against subsequent executed, acknowledged, and verified in all creditors and purchasers. Hold, that Act March respects as provided and required by section 9, 1893, amending section 2955 so as to author
2957 of the Civil Code, except that it was ize mortgages on sheep and neat cattle, does not entitle a mortgage on such stock, executed
not recorded until May 9, 1893, when it was before the passage of such act, to be recorded, duly recorded in the office of the county so as to render its record, made after the pas- recorder in and for the county of Mensage of the act, constructive notice. 2. A chattel mortgage on property other
docino, in which county the parties resided than that authorized to be mortgaged by Civ. and the property was situate. The mortCode, § 2955, is as a common-law mortgage, val- gagor, E. S. Gibson, retained possession of id against all persons except subsequent credit
the mortgaged property. It may be reors of the mortgagor and bona fide purchasers.
marked here, by way of parenthesis, as it is Commissioners' decision. Department 1.
not within the findings, that, at the date Appeal from superior court, Mendocino coun
of the execution of the mortgage, neat cattle ty; R. W. Crump, Judge.
and sheep were not among the articles of Action by the Bank of Ukiah against E. S.
personal property upon which personal mortGibson and others to foreclose a mortgage.
gages could be made under section 2955 of From a judgment denying plaintiff a fore
the Civil Code, but that on the 9th day of closure as to part of the property, it appeals. March, 1893, said section 295) was amcoded Affirmed.
so as to include "neat cattle, horses, mules, J. A. Cooper, for appellant. J. M. Mannon, swine, and sheep, and the increase thereof." T. L. Carothers, J. W. Oates, J. Q. White, Subsequent thereto, and on the 9th day of and J. H. Seawell, for respondents.
May, 1893, the mortgage was recorded as
before stated. After the recording of said SEARLS, C. This is an action by the mortgage, viz. after May 9, 1893, the deBank of Ukiah (a corporation) to foreclose fendant T. J. Welden, with full knowledge * Reversed in banc. See 41 Pat. 1008, 109 Cal. 197.
of the existence and recording of said mort- of the statute only applied to the specific artigage, and without the knowledge or consent cles of personal property therein enumerated; of the plaintiff, purchased from defendant (2) that where the provisions of the statute E. S. Gibson, at the ranch of the latter in were not complied with, and as to mortgages Mendocino county, the said neat cattle and of personal property not therein provided for, sheep so mortgaged, and drove the sheep the mortgage was absolutely void (except be hence to Drury's corral, in the county of tween the parties thereto), unless accompaHumboldt, where on May 19, 1893, he sold nied by a delivery of the property to the and delivered them to the defendant Mrs. mortgagee. Gassner v. Patterson, 23 Cal. 299; M. C. Drew, who purchased said sheep in Meyer v. Gorham, 5 Cal. 323; Stringer v. Dagood faith, for a valuable consideration, and vis, 30 Cal. 318; Glenn V. Arnold, 56 Cal. without notice in fact of the mortgage of 631. Under our Civil Code (section 2957), "a the plaintiff, and without knowledge that mortgage of personal property is void as Gibson ever owned the sheep. The contract against creditors of the mortgagor and subsefor the purchase of the sheep between Mrs. quent purchasers and incumbrancers of the Drew and Welden was made at Ukiah, in property in good faith and for value, unless Mendocino county, before the sheep were (1) it is accompanied by the affidavit of all driven from said county, but she was not the parties thereto that it is made in good aware of that fact, and went with Welden faith and without any design to hinder, deto said Drury's corral, Humboldt county, the lay, or defraud creditors; (2) it is acknowlday the sheep were driven thither from edged or proved, certified and recorded in like Humboldt county, viz. May 19, 1893. Wel- manner as grants of real property." The den, when he purchased the mortgaged prop- distinction between the former statute and erty from defendant E. S. Gibson, gave to the section of the Code quoted supra is this: the latter an agreement to pay $2.50 per head Under the former law, a mortgage which for the old sheep, and $20 per head for the failed to comply with its provisions was void cattle. Lambs and calves were to be thrown as against purchasers. Now it is only void in.
He has paid nothing on account thereof, as against subsequent purchasers in good and the court finds that said Welden "is faith and for value; that is to say, against not the owner of the neat cattle described in those who purchase without notice and for a the complaint, and his title and claim there- valuable consideration. A mortgage of perto is not paramount to plaintiff's mortgage, sonal property not specified in section 2955 of and he is not the purchaser of said property the Civil Code may be made, and, if possesin good faith or for value without notice." sion of the mortgaged property is delivered As before stated, the sheep were removed to the mortgagee, it is good against all the from Mendocino to Humboldt county May world. If no such possession is delivered to 19, 1893, and within 10 days thereafter, viz. the mortgagee, it is still valid between the May 29, 1893, plaintiff's chattel mortgage was parties and against purchasers with notice. duly recorded in said county of Humboldt. Tregear v. Water Co., 76 Cal. 537, 18 Pac. The chattel mortgage authorized the mort- 658; Works v. Meritt (Cal.; decided Jan. 5, gagee, upon default in the payment of the 1895) 38 Pac. 1109. Recording a chattel mortpromissory note, to take possession of all gage upon articles provided to be mortgaged the mortgaged property, and dispose of the by section 2955, Civ. Code, takes the place of same according to law.
and serves in lieu of the delivery of possesIn the early history of California as a state, sion essential to the validity of the mortgage section 17 of the statute of frauds provided in other cases. Berson v. Nunan, 63 Cal. 550; that "no mortgage of personal property here- Cardenas v. Miller (Cal.; decided March 13, after made shall be valid against any other 1895) 39 Pac. 783. person than the parties thereto, unless posses- The case, then, stands thus: Plaintiff had sion of the mortgaged property be delivered a chattel mortgage, which at the date of its to and retained by the mortgagee.” In 1857 execution was valid between it and the mort. an act was passed under which certain per- gagor, and as against purchasers with notice, sonal property might be mortgaged by com- or without value, but which was void as plying with its provisions, one of which in- against creditors or purchasers in good faith volved recording, which should be valid with- and for value, for two reasons: (1) Because out delivery of the property to the mortgagee. the property mortgaged was not such as is St. 1857, p. 347. This act provided also that specified in section 2955, Civ. Code, and the such mortgages should not be valid (except | recordation thereof would not therefore have between the parties) unless the statute was imported constructive notice; and (2) because complied with. This act was again amend possession of the mortgaged property was not ed in 1861. St. 1861, p. 197. This last act also delivered to the mortgagee. Subsequently, left mortgages of personal property absolutely and before any purchaser intervened, the statvoid, except between the parties, save upon ute (section 2955, Id.) was amended so as to a compliance with its provisions, or where ac- include among the articles which might be companied by a delivery of the property to the mortgaged under it neat cattle and sheep. mortgagee and retention of possession by him. Thereafter plaintiff recorded its mortgage, Under these statutes, the decisions of this and, subsequently thereto, defendant Drew court were to the effect: (1) The provisions | purchased the sheep without other notice than that imparted by the record. Did she take the mortgage was void, both as a common-law subject to the chattel mortgage of plaintiff, and a statutory mortgage of personal propthe appellant here? We are of opinion the erty. The judgment appealed from should be question should be answered in the negative.
affirmed. Section 3 of the Civil Code provides that “no part of it is retroactive unless expressly so de- We concur: BELCHER, C.; HAYNES, C. clared.” We find no declaration showing a legislative intent to apply the amendment of PER CURIAM. For the reasons given in 1893 to section 2953 of the Civil Code to past the foregoing opinion, the judgment appealed transactions, and hence must hold that it does from is affirmed. not so apply. The case then stands thus: Plaintiff had an attempted chattel mortgage upon certain sheep, which, as against creditors and subsequent purchasers in good faith
BANK OF UKIAH v. GIBSON et al. (No. and for value, was absolutely void as a statu
15,663.)1 tory mortgage, for the reason that it was giv- (Supreme Court of California. April 3, 1895.) en upon property not provided for in the stat- Department 1. Appeal from superior court, ute, and therefore incapable of being mort
Mendocino county; R. W. Crump, Judge.
Action by the Bank of Ukiah against E. S. gaged. Jones, Chat. Mortg. $ 122; Stringer
Gibson and others. From a judgment in favor V. Davis, 30 Cal. 318; Gassner v. Patterson, of defendant Drew, plaintiff appeals. Affirmed. 23 Cal. 299; Glenn v. Arnold, 56 Cal. 631;
J. A. Cooper, for appellant. J. W. Oates, J. Dufficy v. Shields, 63 Cal. 333; In re Fischer, Q. White, J. H. Seawell, T. L. Carothers, and 94 Cal. 523, 29 Pac. 961. Such a mortgage,
J. M. Mannon, for respondents. not being accompanied by possession in the
PER CURIAM. This is an action in claim mortgagee, lacked, as against innocent pur- and delivery, to recover the neat cattle and chasers and creditors, the vitalizing force of sheep described in the mortgage to foreclose law requisite to give to it effect, and fell still
which the action was brought in No. 15.662. this
day decided by this court. 39 Pac. 1069. Plainborn. The amendment to section 2955, adopt- tiff recovered the neat cattle described in its ed March 9, 1893, made it possible thereafter complaint. Defendant Drew had judgment in to give chattel mortgages upon neat cattle
her favor for the sheep, wool, etc. Plaintiff ap
peals from so much of the judgment as is in and sheep, but did not and could not, unless
favor of said defendant Drew. The judgment it had a retroactive effect, breathe life into is affirmed, for the reasons given and upon the a dead mortgage of the past. To make a
authority of No. 15,662, so this day decided. chattel mortgage of an instrument, which was not and could not possibly be such at the date of its execution, by force of a law subsequently passed, is to give a retroactive effect
BANK OF UKIAH v. GIBSON et al. (No. to such law. In Pennsylvania, a statute pass
15,722.) • ed in 1833 required that a testator's mark to
(Supreme Court of California. April 3, 1895.) his name, at the foot of a testamentary paper, Department 1. Appeal from superior court, should be accompanied by his express direc
Mendocino connty; R. W. Crump, Judge.
Action by the Bank of Ukiah against E. S. tion to the person who wrote his name to
Gibson and others. From the part of the judgwrite the same; and the court had decided ment for plaintiff, defendant T. J. Weldon apthat, without proof that the name was writ.
peals. Affirmed. ten by the express direction of the testator, J. W. Oates, J. Q. White, J. H. Seawell, T. the will was invalid. In 1818 the legislature
L. Carothers, and J. M. Mannon, for appellant. passed a statute declaring that “every last
J. A. Cooper, for respondent. will and testament heretofore made, or here- PER CURIAM. This is an appeal by defendafter to be made, * * * to which the tes- ant T. J. Weldon from so much of a judgment tator's name is subscribed by his direction, or
in claim and delivery as awards 64 head of neat
cattle to the plaintiff, as against him. It is the to which the testator has niade his mark or
same judgment as that from which plaintiff ancross, shall be deemed and taken to be valid." peals in No. 15,663 (ubi supra), and, like that Laws 1818, p. 16. In Greenough v. Green
case, is affirmed, upon authority of No. 15,662, ough, 11 Pa. St. 489, the supreme court of
between the same parties, this day decided (39
Pac. 1069). that state held the amendatory statute invalid, so far as applicable to last wills executed before its passage. This ruling was upon con
(106 Cel. 673) stitutional grounds, and in the absence, so
BANK OF UKIAH v. MOORE et al. (No. far as appears, of any statute like the third
15,595.) section of our Code, confining statutes to pros- (Supreme Court of California. April 3, 1895.) pective action.
CHATTEL MORTGAGE RECORD AS NOTICE- STAT
UTE-RETROACTIVE EFFECT RigutS OF MORT. It follows that (1) independent of the chat
GAGE - INTERFERENCE BY THIRD PERSON'S tel mortgage act, the mortgage was valid as
EQUITABLE REMEDY. against Gibson, the mortgagor, and Welden, 1. Civ. Code, 8 2955, provides for mortgages who purchased with actual notice of its ex- on certain kinds of property, and section 29.57 istence; (2) that as against the respondent
provides that the record of such mortgages shall Mrs. M. C. Drew, who was an innocent pur
be constructive notice. Held, that since Civ.
Code, $ 3, provides that no part of the Code chaser of the sheep for value, without notice, shall be retroactive unless it is expressly so provided, Act March 9, 1893, amending section (4) In violation of the covenants of the mort2955 so as to authorize mortgages on sheep and neat cattle, does not make a mortgage on such
* Reversed in banc. 41 Pac. 1010.
gage, and for the purpose of depriving plainstock, executed before the passage of the act,
tiff of its security, and since the recording of a statutory mortgage, so as to render the record the mortgage, defendant Gibson has made a of it constructive notice.
pretended sale of the mortgaged property to 2. A chattel mortgage on property other
the other defendants, who have taken possesthan that authorized by Civ. Code, $ 29.35, to be mortgaged, is valid as a cominon-law mortgage
sion thereof, and are threatening to approagainst all persons except creditors of the mort- priate and convert the same to their own use, gagor and bona fide purchasers.
and will do so, and deprive plaintiff of its 3. Since Civ. Code, $ 2927, provides that a chattel mortgagee shall not have possession, un
security, unless restrained by an order of less the mortgage expressly so provided. the court. (5) The value of the said property is mortgagee has no remedy at law before default, $12,000. (6) Said pretended sale was within the absence of such a provision, against persons interfering with the mortgaged property,
out consideration, and was made and threatand therefore equity will interfere to protect it
ened to deprive plaintiff of its security. (7) for him.
Plaintiff is the owner of the note and mortCommissioners' decision. Department 1.
gage, and is without remedy, unless the court
shall interpose, grant an injunction, and apAppeal from superior court, Sonoma county;
point a receiver. The prayer is for an injuneR. F. Crawford, Judge.
tion, and for an order appointing a receiver, Action by the Bank of Ukiah against Reuben Moore and others. There was a judgment
etc. The complaint was filed herein May 24,
1893, and consequently the note and mortgage for defendants, and relaintiff appeals. Reversed in part.
of plaintiff were not then due and payable.
This case grows out of the same transaction J. A. Cooper, for appellant. J. W. Oates, J.
involved in Nos. 15,662, 15,663, and 15,722, this H. Seawell, J. Q. White, J. M. Mannon, and day decided (Bank v. Gibson, 39 Pac. 1069, T. L. Carothers, for respondents.
1071), and much that is said in the opinion
in No. 15,662 is applicable here, and will not SEARLS, C. This is a bill for an injunc- be repeated at length. tion by the corporation plaintiff in aid of the It will be observed from the foregoing statepreservation of certain personal property ment that while the complaint avers the exe(neat cattle, sheep, etc.) upon which said cution and recording of the mortgage as proplaintiff holds a chattel mortgage. Defend- vided for by sections 2955 and 2957 of the ants demurred to the complaint, and moved Civil Code, in cases of mortgages on personal the dissolution of an injunction issued in the property, yet the articles mortgaged-sheep cause, and for the discharge of a receiver ap- and neat cattle—were not among the articles pointed therein. The demurrers (two in num- provided to be mortgaged under said section ber) to the complaint were sustained by the 2955. It follows that the mortgage was not court, upon the grounds stated therein, viz. one the recording of which imparted conthat the complaint did not state facts suffi- structive notice to the world. It is claimed . cient to constitute a cause of action. The in- by appellant that as section 2955 was amendjunction was dissolved, the receiver dischar- ed March 9, 1893, so as to include, within the ged, and, plaintiff having failed to amend, articles which under it can be mortgaged, final judgment went for defendants. Defend- neat cattle and sheep, the recording thereof, ant Mahulda C. Drew filed an answer with after the passage of the amendment, rendered her demurrer. The other defendants did not it in all respects valid as a statutory mort
The appeal is by plaintiff from the gage. The answer to this proposition is that final judgment and from the order dissolving such a construction would give to the Code the injunction.
a retroactive effect, to make a statutory mortThe complaint to which the demurrers were gage of that which was not such when it was interposed a vers, in addition to the more executed. Section 3 of each of our four Codes formal portions thereof: (1) The execution, declares that “no part of it is retroactive, unJune 30, 1892, of a promissory note for $29,- less expressly so declared." The amendment 917.88, with interest, payable one year after does not so declare, and cannot therefore be date, by defendant Gibson to plaintiff, and so construed. But, says the appellant, a mortthe execution of a chattel mortgage as securi- gage or other instrument recorded before the ty for the payment thereof by said Gibson existence of any registry law will be held to upon certain neat cattle and sheep described impart notice when thereafter a registry law therein and upon the ranch of defendant Gib- is enacted authorizing the recordation of such son in the county of Mendocino. (2) The instruments; and authorities are cited in supmortgage complied with the requirements of port of the contention. Registry laws are section 2956 of the Civil Code, stated the oc- usually not held to have a retroactive effect, zupation of the parties, and was accompanied except so far as they may affect vested rights. by the affidavit, and was acknowledged and The theory of appellant, however, presupposes certified as required by said section, and was a valid instrument to record; and in the presafterward, and on the 9th day of May, 1893, ent instance the objection is, there was no valid recorded as a chattel mortgage, etc. (3) All statutory mortgage to be recorded, and as the the mortgaged property is inadequate to pay statute provides for recording only those the note, and the defendants are insolvent. which may be made pursuant to section 2955,