97 P. 705 | Cal. Ct. App. | 1908
The action was to have it adjudged that a deficiency judgment docketed against the land claimed by plaintiff is not a lien thereon and for an injunction restraining defendants from selling said land upon an execution. Plaintiff had judgment as prayed for. Defendants moved the court, under sections 663 and 663 1/2, Code of Civil Procedure, to set aside and vacate the conclusions of law, and amend the same, and to amend the judgment in accordance with the amended conclusions of law. The motions were denied and defendants appeal from the judgment and the orders.
About all of the facts essential to a comprehension of the issues appear in the findings of the court, which latter are *691 supported by the evidence. It appears therefrom that on October 1, 1898, one E. L. Emerson was the owner of the premises in question, and upon that day executed a contract for the sale thereof to intervener Briggs for the consideration of $1,600, payable in installments as follows: Eight hundred dollars within three years, and $800 in five years from said date, with eight per cent annual interest, which said contract was recorded June 12, 1905; on November 27, 1901, said E. L. Emerson conveyed said premises to Grace B. M. Odell, and this deed was duly recorded December 4, 1901; prior to February 15, 1905, on which date Grace B. M. Odell and her husband, Frank Odell, conveyed said premises to plaintiff, intervener Briggs paid various sums on account of said contract of purchase amounting in the aggregate to $1,269.73, and at the time plaintiff received said deed from said Grace B. M. Odell, as aforesaid, he executed and delivered to said intervener Briggs a contract for the conveyance of said premises for the sum of $1,000, which contract was duly recorded March 25, 1905, and at all times since the execution of said contract by said Emerson to said Briggs the latter was and now is in possession of said premises; the name of plaintiff's said grantor, Grace B. M. Odell, was formerly Grace B. M. Emerson, and she was married to her said husband, Frank Odell, October 28, 1899; prior to her said marriage, to wit, on May 1, 1897, she had joined with others in the execution of a certain promissory note secured by mortgage to defendant Mrs. J. M. Sweetser, presumably upon land other than that in question, executing the same in her name, at that time, of Grace B. M. Emerson; that subsequent to her said marriage, to wit, on July 25, 1901, an action was commenced, wherein the said Grace was one of the defendants, for the foreclosure of a prior mortgage upon the premises covered by the mortgage of the said Sweetser, in which the latter was made defendant as a subsequent mortgagee; Mrs. Sweetser appeared in said action and filed a cross-complaint, for the foreclosure of her said mortgage, and on May 17, 1902, a decree was duly rendered in said cause, wherein, among other things, it was adjudged that there was due and owing to Mrs. Sweetser upon her said mortgage at the date of the decree, the sum of $6,175.00; after said sale, and after applying the proceeds thereof, there remained a deficiency due said Sweetser amounting to $6,236.44, for which amount a deficiency *692 judgment was docketed in her favor, on June 28, 1902, "against said Grace B. M. Emerson, and in the name of Grace B. M. Emerson" (and others), upon which said judgment there remains due the sum of $3,814.75, with interest; at the commencement of this action and at the time of the entry and docketing of said judgment, the true and correct name of said judgment debtor was Grace B. M. Odell, and not Grace B. M. Emerson. It is further found that at the time plaintiff Huff purchased said premises from said Grace B. M. Odell and executed the contract of sale thereof to intervener Briggs, "neither plaintiff nor Briggs had any notice or knowledge of the aforesaid judgment of said Sweetser against said Grace B. M. Emerson, nor that she claimed any lien by virtue thereof, upon said premises; but they did know Grace B. M. Emerson, both before and after her said marriage." On April 1, 1905, defendant Sweetser, claiming said judgment to be a lien upon the premises in question, caused execution to be issued upon her said deficiency judgment and caused the same to be levied thereon by defendant Ross, sheriff of Santa Clara county, and under and by virtue of the said execution the said sheriff proceeded to advertise said premises for sale, and said defendants intend to, and will sell said premises for the satisfaction of said judgment, unless restrained by judgment and order of the court.
As conclusions of law the court found, (1) that said judgment is not, nor was, a lien upon said premises; (2) that plaintiff Huff and intervener Briggs are entitled to a judgment perpetually enjoining defendants from selling said premises under said judgment, together with costs of suit.
The contention of appellants is, (1) that the judgment docketed June 28, 1902, constituted a lien on the premises; (2) that plaintiff and intervener had actual and constructive notice of said judgment lien; (3) that the findings and conclusions of law are not justified by the evidence.
As to the evidence, it is principally documentary and undisputed. Plaintiff testified that when he took the deed to the property he had no knowledge of the judgment of Mrs. Sweetser against Grace B. M. Emerson; that he knew her when unmarried, and knew of her marriage to Odell. Intervener Briggs testified to his purchase under the contract with E. L. Emerson, in 1898; that he knew Grace B. M. Emerson both before and after her marriage; that up to February, 1905, *693 he had paid all that was due on his contract except $1,000, and that he now pays his interest and other payments to plaintiff Huff and not to Emerson; that plaintiff Huff advanced the money to pay off a mortgage upon the land. Frank Huff, son of plaintiff, testified that he attended to the business for his father, paid off the old mortgage on the land "and had Mrs. Odell give my father a deed to secure him for the thousand dollars which he advanced. The land is worth about $2,000." He further testified that he had known Mrs. Odell both before and after her marriage. He testified: "I did not have the records searched to see whether there was any judgment against Mrs. Odell or Mrs. Emerson. I took their word that it was all right. Both Emerson and Mrs. Odell said it was all right; that there was nothing against the land except this mortgage which we paid off." Mrs. Sweetser testified that she never knew or heard of intervener Briggs or his contract with Emerson or plaintiff Huff until this suit was commenced. The above is the entire testimony.
There is no evidence to support appellants' contention that plaintiff and intervener had actual notice of the judgment. There is no evidence that after her marriage the judgment debtor "was commonly known by the name of Grace B. M. Emerson," as claimed by appellants. That respondents had personal acquaintance, during all the mentioned times, with Grace Emerson, is not evidence of knowledge of or notice to respondents that there was a judgment against her. In point of fact plaintiff was assured by both E. L. Emerson and Grace Odell that there were no liens except the mortgage lien which plaintiff discharged. When Emerson conveyed to Mrs. Odell in 1901, the deed was made expressly subject to Briggs' contract and also subject to the mortgage which plaintiff paid off. Briggs having paid up his contract except $1,000, Mrs. Odell conveyed her interest to plaintiff, in consideration of his paying this amount by paying off the mortgage, and plaintiff then gave the new contract to intervener Briggs. The legal and equitable title thus passed to plaintiff and intervener, and as to their relation to each other in respect of the title defendants are not concerned.
The pivotal question in the case is this: Was plaintiff charged with constructive notice of Mrs. Sweetser's deficiency judgment lien at the time Mrs. Odell conveyed to him? It is doubtless true that by her marriage Grace Emerson could *694
not avoid the effect of the lien so far as she was concerned. Appellants cite the case of Bogart v. Woodruff,
Grants are to be recorded in one set of books and mortgages in another. (Civ. Code, sec.
Briggs' contract with Emerson was not recorded until after the Sweetser judgment was rendered and docketed. His rights, however, were not affected by this fact. The judgment creditor is regarded as acquiring such rights only as a debtor had (24 Am. Eng. Ency. of Law, 123, 124, and notes); and there is nothing in our registration act to change this rule. See Wilcoxson v. Miller,
We think the case was rightfully decided, and the judgment and orders are, therefore, affirmed.
Hart, J., and Burnett, J., concurred. *698