117 Cal. 12 | Cal. | 1897
In August, 1893, there were pending in the superior court two certain actions, in each of which the appellant here, Davis, and the respondent,' Mary J. Randall, were the main contestants.
One of these actions was brought in the name of E. C. Vancil, to foreclose two certain mortgages upon the premises described in the complaint, one executed October 19, 1883, by the defendant, Nicholas W. Randall, who was then the owner of the premises, to one A. Montgomery to secure a promissory note made by said Randall to said Montgomery for the sum of nine thou
The said other action then pending was a partition suit by the said Mary J. Randall, as plaintiff, against Nicholas W. Randall, J. T. Davis, and others, in which she averred that she held a homestead interest to the extent in value of five thousand dollars upon the premises described in said mortgages, and also an undivided interest in the rest of said premises, and that said Nicholas W. Randall was the owner of the undivided one-half interest of said premises not covered by said homestead. She prayed to have her homestead to the value of five thousand dollars set apart to her out of the said premises, and also that she have awarded to her the undivided one-half of the rest of said land. To the complaint the said Nicholas W. Randall and J. T.
On the twenty-fourth day of April, 1893, the said two actions above referred to were, by the consent and agreement of the respective parties, “consolidated and tried together, and upon the same evidence, said evidence to be introduced at the trial of this action (the foreclosure suit), and considered as if the same were offered and submitted on the trial of each of said actions separately, and that both the said actions may be submitted for decision, and decided upon the said evidence.” Thereafter the said two actions were tried and submitted together, the evidence being introduced in the case in which this present appeal, No. 178, is taken.
The appellant attacks a great many of the findings of the court, and the record shows some seventy different assignments of errors in rulings upon the admissibility of evidence; but under our views of the case many of the points made for reversal need not be noticed. The court finds that while the said Davis was pretending to act, in the various transactions brought before the court, as the agent of said E. C. Vancil, he was really acting -for himself; that the note and mortgage purporting to have been given by Nicholas W. Randall to said E. 0. Vancil were in fact given to the said Davis on his own account; that the purchase of the Montgomery mortgage was made really by Davis, and that Vancil had no interest in it, and that in all the transactions Davis, and not Vancil, was the real party in interest; but this find
Assuming, as the court found, that Mrs. Randall lived upon the land at the time she filed her homestead, and that it was in all respects a valid homestead, still her declaration of homestead was not made until the twentieth day of July, 1886, and at and before said time the said two mortgages were valid and subsisting liens on said premises, prior and superior to any homestead right which Mrs. Randall could acquire thereto, and said mortgages at the time of the commencement of this suit were and still are subsisting liens, not affected by said homestead, unless they have been satisfied and ended as such liens. But there is no evidence warranting the court in finding that said liens have been paid and satisfied, except the naked fact that in September, 1886, about two months after the filing of said homestead, the said Nicholas W. Randall made a deed to said Davis, conveying the fee of said mortgaged premises to said Davis. The only ground upon which it could be held that said mortgages have been satisfied is that they were merged in said deed. But the case is not one to which the doctrine of merger can be applied. In Scrivner v. Dietz, 84 Cal. 298-9, the principle that a merger will not be implied in a case like the one at bar is stated, with the authorities cited, as follows: “Merger is always a question of intent when the question is as to whether a mortgage lien is merged in thp fee, upon both being united in the same person. (Jones on Mortgages, secs. 848, 856, 857, 870, 872, 873.) Equity will keep the legal title and the mortgagee’s interest separate, although held by the same person, whenever necessary for the full protection of the person’s just rights. (Carpentier v. Brenham, 40 Cal.
Under the foregoing views the judgment and order denying a new trial must be reversed; and it is unnecessary to inquire into the many other questions presented in the complicated record. Whether Davis, when taking a mortgage from Randall, which was in form to Vancil, and when purchasing and taking an assignment of the Montgomery mortgage, was acting for Vancil or for himself seems to be an immaterial matter, and of no consequence to respondent. Any rights she has as against the one she has also as against the .other. The objective and controlling question in the case is whether or not the prior liens of the mortgages were lost as against the subsequent homestead, because they were merged in the deed afterward executed by Randall to Davis. If, as we have above held, they were not, then the judgment was clearly erroneous. We cannot make findings for the court below; but it is apparent that if at another trial no different state of facts appears, there should be a decree foreclosing the mortgages as liens prior and superior to respondent’s asserted homestead, and not subject or subordinate to said homestead. And for these reasons the judgment and order denying a new trial in the said partition suit (appeal 177) must also be reversed.
Temple, J., and Henshaw, J., concurred.