129 P. 470 | Cal. Ct. App. | 1912
The action was one instituted by plaintiffs to determine adverse claims to real property described in the complaint the ownership and seisin of which was alleged to be in plaintiffs. Defendants and appellants answered, each alleging that on October 16, 1908, plaintiffs executed to one L. E. Jones their promissory note for the sum of five thousand five hundred dollars, copy of which is set out and made a part of the answer, and as a part of the same transaction, to secure the payment of such note, executed a mortgage in writing upon the property described; that thereafter, on October 24, 1908, said Jones assigned and transferred said note and mortgage to the Broadway Bank Trust Company, after which date, to wit: on November 19, 1908, defendant Fiske, through defendant Forrester, her agent, purchased said note, paying the face value thereof, and the same was assigned and transferred to said Fiske. It is further averred that said Fiske is the owner and holder of the note and mortgage and that no portion of the mortgage indebtedness has been paid, except the sum of two hundred and twenty dollars interest paid thereon April 16, 1909; and defendants asked that the mortgage be declared a first lien upon the property and that plaintiffs be decreed to hold the title subject thereto. The defense is thus seen to have been founded upon a written instrument, copy whereof is contained in the answer, and plaintiffs not denying its genuineness and due execution under oath, such genuineness and due execution of the instrument set out is thereby admitted. *390 Under this admission of plaintiffs, and under the issues presented, the trial court proceeded to a hearing of the cause and found the ownership and seisin in plaintiffs, the execution of the note and mortgage as in the answers alleged, and the ownership thereof in said Fiske. The court further found that the only adverse interest held by defendants and appellants was that of an encumbrance upon the property created and established by the said note and mortgage, the amount of which encumbrance the court found to be the sum of two thousand five hundred dollars, with interest thereon, and by its judgment decreed plaintiffs to be the owners and seised of the premises subject to the lien of defendants for two thousand five hundred dollars, with interest from October 16, 1908, less a credit of two hundred and twenty dollars paid on account of interest, which interest was to be computed according to the terms and provisions of the note and mortgage. Defendants and appellants moved for a new trial, which was denied, and they appeal from the judgment and order upon a statement of the case.
It is appellants' first contention that the action authorized by section
It is appellants' further contention that under the facts presented the plaintiffs are estopped to claim that the note and mortgage are for less than the full amount. It is settled law in this state that "one about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to the validity of the instrument and of the transaction on which it was founded and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed." (Briggs v. Crawford,
Appellants' citation of authorities to the effect that the acknowledgment of a deed is a public declaration of a fact upon which all persons may in good faith act and which the grantor is estopped from attacking, can have no application in this state where the question involved relates to a mortgage which is but a lien and encumbrance upon the property, and were its force even conceded in that direction, our supreme court has by the decisions hereinbefore cited declined to observe the rule.
We see no prejudicial error in the action of the court permitting the plaintiffs to show that they had been compelled to borrow money elsewhere by reason of Jones's failure to advance the amount agreed. Assuming the incompetency of *394 such evidence, it could not in any view of the case have prejudiced the defendants.
Appellants' final contention is that the court failed to find upon a material issue relative to an estoppel. As we have before attempted to show, there was no issue with relation to an estoppel and no finding was necessary.
We see no error in the record, and the judgment and order are affirmed.
James, J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 20, 1913.