39 Cal. 504 | Cal. | 1870
delivered the opinion of the Court:
Miller and wife held a $1,500 note and first mortgage upon certain real estate, made to them by Mixer and wife. Bus-sell being the holder of another note and mortgage made by Mixer and wife, which was a junior lien upon the mortgaged premises, became, in 1867, the assignee of the $1,500 note, and by consequence the equitable owner of the mortgage by which it was secured, no separate assignment of the latter, however, having been made to him. In 1869, the $1,500 mortgage then still standing upon the record in the names of Miller and wife, -the latter, at the instance of Bussell himself, as found by the Court below (but through the inadvertence and mistake of Miller and wife, as alleged in the complaint), entered satisfaction of that mortgage upon the record by the usual marginal entry of satisfaction, witnessed by the Becorder, as provided by statute. Under these circumstances Bussell commenced this action to foreclose the . mortgage against Mixer and wife, the mortgagors, and one Jane P. Morrill, an alleged subsequent incumbrancer of the mortgaged premises.
The complaint sets forth the making of the $1,500 note and mortgage to Miller and wife, and their assignment of the note to plaintiff, Bussell; that the Millers subsequently -thereto, “through inadverténce and mistake, acknowledged the payment and satisfaction of said’mortgage, and indorsed the same in writing on the record,” and proceeds to aver, “that at the time of the entry of said indorsement on said record, the said Millers had no interest in or claim upon said mortgage, or the property therein mentioned, and did not receive any consideration for said indorsement, but
The Court below rendered a decree of foreclosure against the mortgagors and the subsequent incumbrancer, but did not set aside or annul the satisfaction of the mortgage which had been entered by Miller. It found as a fact that this satisfaction had been entered by Miller at the instance of the plaintiff, Russell, himself, and that the latter paid the Recorder’s fees for entering the satisfaction, and that there was no fraud, misrepresentations or inducements committed, made or offered by the mortgagors to bring about the entry of the satisfaction of the mortgage, and that the latter did not, at the time, even know of the fact of the entry of satisfaction upon the record; but it announced, as a conclusion of law, “that the entry of satisfaction on the record of said mortgage was not a satisfaction or release ■ of the same, except as to subsequent purchasers and mortgagees for a valuable consideration, ivithout notice.”
We are unable to see how this decree of foreclosure can be supported in point of law. The case has been argued here as one brought to set aside the satisfaction of the mortgage as having been entered by mistake; but beyond the vague statement that this satisfaction was entered in the Recorder’s office through the “inadvertence and mistake” of William Miller (and even that is inserted rather by way of recital than as a direct averment), the complaint makes no attempt whatever to present a case for relief on the groiond of mistake. The finding of the Court in this connection, too, is that Miller entered the satisfaction at the request of the plaintiff, Bussell, himself. . Miller, therefore, could not have made a mistake in this respect, for he did only what Russell, ,
It is unnecessary for us, under the circumstances, to enter upon a consideration of the scope or extent of the jurisdiction of Courts of equity in relieving against mistakes, whether they be of fact, or of law merely, or to determine the questions of that character which were argued by counsel, for we cannot, of course, undertake to anticipate the exact nature of the case which may hereafter be presented on the return of the cause to the Court below.
The decree is erroneous, too, in that it proceeds to foreclose the mortgage in question, without, at the same time, by its decree, setting aside the satisfaction of the mortgage, which was entered. That satisfaction, as long as it is permitted to remain undisturbed by a direct proceeding to set it aside, operates to displace the lien of the mortgage, which is thereby rendered non-existent, and the Court erred in holding in' this collateral manner that it did not operate upon the rights of the mortgagors, but only in favor of “subsequent purchasers and mortgagees.” The entry of this satisfaction is regulated by the statute, which prescribes that it may be done" in the manner here pursued, and the statute itself provides that, as a consequence, the" “mortgage” is itself “discharged.”
Decree reversed, and cause remanded.
