72 P. 440 | Cal. | 1903
Lead Opinion
This is an action to foreclose a mortgage given by defendant Ornelas and wife to their infant daughter, and subsequently assigned to the plaintiff Martin. The appellant, Harper, was a purchaser of the mortgaged real property after the mortgage was signed, acknowledged, and recorded, and before it was assigned to plaintiff. The judgment was in favor of plaintiff against all the defendants. The defendant Harper appeals from the judgment against him, and from an order denying his motion for a new trial. The plaintiff moved to dismiss the appeals, on the grounds, — 1. Of failure to serve notice of appeal on the Ornelases as adverse parties in interest; and 2. Insufficiency of the undertaking on appeal. The motion to dismiss was continued to be heard with the case on its merits, and leave was given to file further proof of service. Since said continuance the appellant has filed a new affidavit of Mr. Downing (who made the previous affidavit of service alleged by respondent to be defective) showing the due service of the notice of appeal, free from any objection. Appellant has also filed a written admission of due service of said notice, signed by said respondent defendants. The notice of appeal, or a copy of it rather, is printed in the transcript, and it will be presumed, that the reference in the written admission, as well as in the affidavit to the "notice of appeal in the above-entitled action," relates to the original of said copy so printed in the transcript. This affidavit and admission obviates all objection to the appeal made on account of want of service or absence of proper proof of service. (SutterCounty v. Tisdale,
The undertaking in question, after reciting the two appeals, *44
concludes as follows: "Now, therefore, in consideration of the premises, and of such appeals, the Fidelity and Deposit Co. of Maryland (a corporation) doth hereby undertake and promise on the part of the appellant that the said appellant will pay all damages and costs which may be awarded against him on the appeals, or on a dismissal thereof, or of either of them, not exceeding the sum of $300, to which amount it acknowledges itself bound." The objection urged to this undertaking is, that the words "or either of them" were omitted after the word "appeals," so that if judgment should go for respondent on one appeal, and against him on the other, no recovery could be had against the sureties. No case is cited to support this objection, and we think it not well founded. The appeals being from the judgment and from an order denying a new trial, one undertaking in the sum of three hundred dollars was sufficient to cover both appeals.(Bell v. Staacke,
The preliminary objections made by respondent to hearing the appeal from the order denying a new trial, because of the absence of specifications of particulars, etc., need not be discussed, for the reason that appellant in his reply brief seems to have practically abandoned his appeal from the order, as his contentions are all directed to the appeal from the judgment.
The appellant contends that the findings do not support the judgment rendered. We think this contention is well founded. The findings show that Manuela, the ward of her father, Ornelas, held a note for twenty-five hundred dollars, executed by one Garcia, and secured by a mortgage upon a town lot, executed by the same party; that said town lot was thereafter conveyed to Ornelas, the guardian, by Garcia; that Ornelas conveyed the said lot to Martin for a consideration; and, without an order of the court authorizing it, attempted, as guardian of the ward, to satisfy of *45
record the Garcia mortgage on the same lot, and thereafter, as agreed with Martin, Ornelas and his wife signed, executed and delivered a note and mortgage for two thousand five hundred dollars and interest on a lot in the Alvarado tract, belonging to Ornelas and his wife, to the ward. This mortgage was recorded, and the last-named note and mortgage were intended and given as substitutes for the aforesaid Garcia note and mortgage. The two thousand six hundred dollars paid by Martin for the town lot was applied directly to the payment of Ornelas's debts, and no part of it went to the ward. Subsequent to the giving of the Ornelas mortgage to the ward, the guardian, Ornelas, being again in need of money, attempted, as guardian, without any authority from the court, to satisfy of record the said mortgage given to the minor by himself and wife on the Alvarado lot; and at the time time he and his wife gave a mortgage to a local bank on the same property. This mortgage was subsequently foreclosed, the property bought in by the bank, which thereafter assigned its sheriff's certificate to defendant Harper, who at about the same time bought the lot from Ornelas and wife and obtained a deed from them for the same. Harper paid one thousand seven hundred dollars for the land. Soon after this the friends of the ward obtained the appointment of a guardian ad litem for her. Said guardian adlitem, in pursuance of an order of court, duly authorizing him thereto, commenced a suit against Martin et al., to set aside the release of the Garcia mortgage and to foreclose the same, and in this suit judgment was rendered against Martin et al., and in favor of said ward, awarding a foreclosure of the Garcia mortgage, a sale of the lot upon which it rested to satisfy the note secured by the mortgage, and a deficiency judgment against Garcia and Ornelas. Appeal was taken by Martin to the supreme court. While this appeal was pending, Martin made a compromise with the guardian ad litem, by which it was agreed that Martin should pay the ward three thousand two hundred dollars, and in return the judgment should be reversed and remanded to the trial court, the trial court to enter judgment in Martin's favor, and the minor to assign all her right and title in the Ornelas mortgage to Martin. This compromise was duly approved by the probate court for the minor; and the case was disposed of and the assignment of the mortgage made in *46
accordance therewith. Soon thereafter Martin commenced this suit to foreclose the assigned mortgage. Between the commencement of the suit in foreclosure on behalf of the minor and the date of the compromise, Harper made permanent improvements on the land previously purchased by him, to the extent of one hundred and fifty dollars in value. Martin had full notice of the dispositon to be made of the moneys which he paid to Ornelas. Harper had no notice of the arrangement between Martin and Ornelas, or of the disposition of the money paid for the Garcia lot. It is clear from the foregoing statement of facts that the attempted satisfaction of the Garcia mortgage without an order of the probate court authorizing the same was of no validity. (Jenningsv. Jennings,
As to the claim that the Ornelas mortgage should be treated as valid for the protection of Martin, even though the ward elected to hold on to the Garcia mortgage, we have this to say: Harper purchased the land without any notice of Martin's equities, as is shown by the findings, and, conceding that the attempted satisfaction of the second mortgage was invalid, Martin was responsible for the doubtful and uncertain condition of his own title in the Garcia property. It was the result of his negligence in not seeing to it that the several acts of the guardian were duly authorized; and he will not be permitted to save himself from his own negligence by resort to the equitable doctrine of subrogation at the expense of one who innocently invested his money without notice of any of these equities now claimed by him.
Again, it would be inequitable, as against the rights of Harper, to allow Martin to give the arrangement between Ornelas and himself any other effect than the parties to it intended it should have at the time it was entered into. They intended that the Ornelas mortgage should satisfy the Garcia mortgage. It is so found. They never intended that the ward should have the benefit of both those mortgages. What principle of equity can be invoked now to give the transaction a greater scope, a broader effect in Martin's behalf than it was to have on behalf of the minor? The respondent now wants both these mortgages held to be in full force and effect for the protection of his "latent equities" against a purchaser for value who had no notice of those equities. Equity will not so punish an innocent party that it may reward a negligent party for his negligence. (Heyder v. Excelsioretc. Assn.,
The judgment and order are reversed.
McFarland, J., Henshaw, J., Lorigan, J.,
Angellotti, J., Van Dyke, J.
Dissenting Opinion
I dissent from the opinion of the majority of the court in this case. There are some facts stated in the findings which are important to the consideration of the case that are not mentioned, or, at all events, not emphasized, in the prevailing opinion. It is shown in the findings that Ornelas and Martin made an agreement for the purchase and sale of the land mortgaged by Garcia to the ward, for the sum of two thousand six hundred dollars, which was its full value; that at the time this agreement was made Martin did not know of the existence of the Garcia mortgage, but shortly afterwards, upon discovering it, there was a further agreement that Ornelas should execute the mortgage on the land now owned by Harper. It was a part of this agreement that Ornelas should obtain from the probate court an order authorizing him, as guardian of the minor Soledad Ornelas, to release the Garcia mortgage, and to execute to the minor, as security for the original debt, the other mortgage. It further appears that before the transaction was closed and the money paid by Martin to Ornelas, *49 and some weeks after the agreement to obtain the authority, Ornelas reported to Martin that he had obtained from the court authority to execute the release and mortgage, and that Martin, believing this to be true, closed the deal and paid the money for the benefit of Ornelas. It is to be further noted that the court finds expressly that there was an actual delivery of the second mortgage to the minor.
It is clear from these facts that the giving of the second mortgage was as much, if not more, for the benefit of Martin as for the benefit of the ward.
When the arrangement was thus completed, as the minor was not bound by the release, and the Garcia mortgage was consequently still an outstanding lien upon the land, Martin, in equity, assumed the position of a surety, with Ornelas as the principal debtor and the minor as the creditor. Upon the creation of this relation the right of subrogation accrued to Martin. This right does not depend upon any contract, express or implied, but grows out of the relation of surety and creditor, and the principles of natural justice. (Brandt on Suretyship, sec. 260; Hidden v.Bishop, 5 R. 1. 29; Mathews v. Aikin,
It is suggested that because Harper purchased the land for its full value, and without notice of the equitable rights of Martin, that, therefore, he took the land freed from this burden. I can see no force in this proposition. The mortgage was recorded, and there was no valid release. On its face it purported to be an absolute mortgage for two thousand five hundred dollars, payable to the minor. Of all this Harper had notice — constructive notice, it is true, but equally as effective in law and equity as actual notice. He was not deceived by any act of Martin, or misled in any way by the *52
existence of Martin's equity. The mortgage was there apparently in full force. The ward had a perfect right to enforce it. The right of Martin to subrogation was in existence at the time he purchased, because at that time Martin had entered into a contract of suretyship, and under section
There is no claim here that both mortgages are to be enforced in favor of the minor. There is but one debt, and as Martin has paid that debt, he is enforcing the mortgage primarily liable for its payment. It is not claimed that either the ward or Martin could enforce against the Ornelas land any surplus of the debt over and above the amount of the mortgage executed by Ornelas, or over and above the amount which Martin paid on the debt. Something is said about Martin's negligence having in some way estopped him from asserting this mortgage against Harper. If his negligence had created an appearance of security upon which Harper had relied in making his purchase, there might be some force in this suggestion, but it is very manifest that nothing of this kind occurred. The mortgage, as above stated, was upon its face positive and unequalified, and Harper had notice of the fact. There can be nothing in the neglect of Martin in failing to demand proof of Ornelas's authority to make the release which could have the effect of estopping him from pursuing his equitable remedy upon the mortgage.
For these reasons, I think it is clear that Martin had the right to pursue the mortgage which was given, in part at least, for his benefit, and that the judgment should be affirmed.
Beatty, C.J., concurred in the dissenting opinion.
*53Rehearing denied.