59 Cal. 486 | Cal. | 1881
Neither the pleadings nor the findings in this case are what they ought to be. We are opinion, however, that the judgment must be affirmed.
From the findings it appears that the land in controversy,
Pursuant to this agreement the plaintiff, on the twenty-eighth of November, 1876, paid to the defendant Angel one
In her answer the defendant, Francisca, avers that the notary taking her acknowledgment failed to make known to her the contents of the deed; that the acknowledgment was taken through an interpreter, who did not correctly interpret the contents of the instrument, but told her it was a mortgage to secure the payment of the sum of three thousand dollars, with interest; and the Court below so finds. But it is not alleged, found, or claimed that the plaintiff had any notice of those facts. It is clear, therefore, that the notary’s certificate is conclusive as to the facts stated in it. (Grant v. White, 7 Pac. C. L. J. 192; Jones on Mortgages, vol. 1, § 538; Baldwin v. Snowden, 11 Ohio St. 203.)
Being conclusively bound by the certificate of acknowledgment, which shows her knowledge of the contents of the deed, and having permitted her husband to take and use it according to his own judgment, the wife has no right to complain that he delivered it in accordance with its terms and manifest purpose. “ Under such circumstances,” as said by the Court in the case last cited, “ a delivery by him must bind her as well as himself. The grantee may properly regard her execution and acknowledgment of the instrument as evi
The findings show that the time allowed by the terms of the deed for the repurchase of the property by the grantors expired, without any offer on their part so to do; and as the deed conveyed to the plaintiff the legal title, the Court below rightly gave him judgment for possession of the premises.
But the Court also found that the plaintiff did not pay the Euiz debt when it became due, nor at all; and that, as a consequence, the latter commenced an action to enforce its payment and to foreclose the mortgage securing it, in which action judgment went for the plaintiff, under which the house and lot were sold and subsequently conveyed to Euiz by the Sheriff. Whether or not there was a judgment over against the defendant Angel does not appear either in the pleadings or findings. We are not, therefore, called on to consider what would be the effect of such fact, if it exists.
Judgment affirmed.
McKinstry J., and Morrison, C. J., concurred.