De Leon v. Higuera
De Leon v. Higuera
Opinion of the Court
Field, C. J. concurring.
The defendant O’Donnell is the sole appellant here. We think the points taken by him are not sustained by the record.
1. The demurrer seems to have been disposed of. No entry expressly overruling the demurrer appears in the record; but one of the points assigned in the statement of grounds of appeal below, seems to be the ruling of the Court on the demurrer. But as the appellant went to trial without insisting on a disposition of the demurrer, it is too late to object here that is was not formally disposed of.
2. Nor is it at all clear to us that the demurrer was well taken for
3. The third error assigned, as to the place of trial, is not sustained. The stipulation does not show that the trial was not at the place appointed by law, but only that some of the parties had agreed that it should be at a different place. But could O’Donnell appear and contest the case in San Francisco, without exception as to the place, and afterward assign this fact as error ?
4. We do not understand the bill as containing causes of action necessarily inconsistent. The prayer, or one of the prayers, may indicate a distinct cause of action against O’Donnell, though even this is doubtful; but the allegations of the complaint, taking them all together, make out a homogeneous case as against all the defendants, to wit: a right to enforce the mortgage, and to a decree of foreclosure binding subsequent claimants, of whom O’Donnell, by his purchase, was one. Upon any construction of the facts charged, he would occupy the position of a subsequent purchaser, with notice of the mortgage.
5. There was no error in admitting the notes and mortgages. They were necessary to a history of the transaction, and to show a consideration for the last mortgage, and O’Donnell’s connection with the property.
6. Higuera and wife do not complain of the decree, but release errors. We cannot, therefore, consider errors in the record to their prejudice. Nor do we see how O’Donnell, under the facts charged and proved, can claim to be a purchaser, on his own account, of this property, and set up the validity of mortgages by Higuera and wife. It seems he got these papers from the plaintiff and took them to Higuera and wife, and claimed them as his property; and on account of so holding them and claiming them to be valid securities, procured his deed. He cannot set up this deed as against the plaintiff, by an arrangement with whom he procured them. Any title which he got under these circumstances he would hold in trust for the plaintiff. But the mortgage of October 4th, 1854, seems to have been sufficiently acknowledged, and to cover the amounts of the former mortgages and to validate them, at least to recognize and give them effect. Besides, the bill charges the execution and acknowledgment in due form of the mort
7. Nor is the point well taken that the papers do not use apt and sufficient words to create a mortgage. No particular words are necessary to bind the property. But it is difficult to find more expressive language than the words “ we mortgage the property,” when accompanied by a provision for the sale of it in the event of nonpayment of money recited in the instrument as being thus secured.
The property of the wife may be mortgaged by joint deed of herself and husband for the debt of the husband; but the papers do not show here that this was the sole debt of the husband, or that it was not the debt of both, or of the wife. (See cases cited on briefs.)
We think there is no error in the record of which the appellant can avail himself.
Judgment affirmed.
Reference
- Full Case Name
- DE LEON v. HIGUERA and WIFE and O'DONNELLs.
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- 5 cases
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- Although it does not appear from the record on appeal that a demurrer to the complaint was formally disposed of, yet, if it does appear in the statement that one of the errors relied on is “ the ruling of the Court on the demurrer, and that the same should have been sustained ;” and if the appellant went to trial without insisting on a disposition of the demurrer, he cannot object in the Supreme Court that the demurrer was not formally disposed of. A subsequent purchaser of land mortgaged is a proper if not necessary party to a foreclosure suit; and if the complaint be faulty in praying to hold him as trustee of the mortgagor, on account of fraud in the purchase, such defect cannot be reached by demurrer. Query, whether in a foreclosure suit in the Seventh District as to land situate in Contra Costa county, a party can appear and contest the case in San Francisco, before the Judge of the Seventh District, under a stipulation, and without exception as to the place of trial, and afterward assign that fact as error. Bill avers, in substance, plaintiff to be holder of several notes and mortgages executed to him by defendants, H. and wife, and that defendant, O’D., proposed to plaintiff to buy said notes and mortgages for a certain sum, which plaintiff agreed to take; that O’D. desired, before closing the purchase, to see H. and wife, and learn whether they could be induced or compelled to pay the notes, asked plaintiff for the notes and mortgages to show H. and wife, and that plaintiff delivered them to him, relying on his honesty; that O’D. saw H. and wife, who were illiterate, and by representing himself as the owner of the notes, etc., which he exhibited, by threatening to sue, etc., induced H. and wife to give him an absolute deed in fee simple of the mortgaged premises for one hundred dollars, the premises being worth many thousands of dollars ; that O’D. then returned the notes, etc., declined purchasing of plaintiff, and concealed the fact of having a deed from H. and wife; that all this was a fraud on plaintiff; that O'D., in taking said deed, acted as agent and trustee of plaintiff, and for his benefit, and should have taken the deed in his name; that in equity said O’D. ought to declare such trust, and execute a deed of the property to plaintiff; that, on account of a defect in the record of one of the mortgages, it does not impart notice, etc., and that if O’D. should sell the property, as ho is trying to do, to an innocent purchaser, such sale would injure plaintiff irreparably. Other parties are made defendants, as claiming some • interest subsequent to plaintiff. Complaint prays for injunction against O’D., that said trust be declared, that he execute a deed to plaintiff, that H.’s wife execute to plaintiff such further conveyance and assurance and release of equity of redemption as may be just in satisfaction of said mortgages, and that all defendants be barred, foreclosed, etc.; or that the deed by H. and wife to O’D. be declared void and canceled, and he be foreclosed of all equity of redemption thereunder; and if such deed be canceled, that then plaintiff have judgment against H. and wife on said notes, that all the defendants be barred, etc., and premises sold to pay the judgment, etc. O’D. demurs that inconsistent causes of action are united. Held, that the demurrer is not well taken, that the allegations of the complaint make out a homogeneous case as against all the defendants, to wit: a right to enforce the mortgages, and to a decree of foreclosure binding subsequent claimants, of whom O’D., by his purchase, is one, with notice of the mortgages. Held, further, that O’D. cannot set up either the invalidity of the mortgages given by H. and wife—who release errors—or the title acquired by him from them, and that he holds the property in trust for plaintiff. The notes and mortgages in this case were properly admitted in evidence, against the objections of O’D., as showing the history of the transaction, and his connection with the property, as also the consideration of the last mortgage, which was given as security for money then loaned, and for the money previously loaned, and secured by three previous mortgages on the same land. A subsequent purchaser of property mortgaged, with actual notice of the mortgage, cannot object to defects in the registry thereof. A mortgage describing the land as “ the rancho of her property, in the place known by the names of ‘ Laguna de los Palos Colorados,’ or ‘ Santa Clara,’ in Contra Costa county,” and stating the land to be the half league the mortgagor acquired from the grant to her first husband, Juan Bernal, which grant is before the TJ. S. Land Commission for confirmation, is not void for uncertainty in description. Ho particular words are necessary to create a mortgage. The words “ we mortgage the property,” when accompanied by a provision for the sale of it in case the money, recited in the instrument as being thus secured, he not paid, are clearly sufficient. The property of the wife may be mortgaged by joint deed of herself and husband for the debt of the husband.