Birrell v. Schie

Burnett, J., delivered the opinion of the Court—Field, J., concurring. This was a suit to foreclose a mortgage. The facts are substantially these: 1. On the second day of February, 1852, Louis Schie borrowed of William Walker five hundred dollars, and to secure the same, executed a note and mortgage. 2. On the twentieth of November, 1852, Walker assigned the note and mortgage to Anton Mengers. 3. On the first of December, 1852, Mengers made a further advance of two hundred dollars, and took from Louis Schie and Minna Hirsch a new note and mortgage, for seven hundred dollars, at the same time surrendering the note of five hundred dollars to Louis Schie, but leaving the first mortgage uncanceled. 4. On the third of June, 1853, the note for seven hundred dollars was delivered up to Schie, and the mortgage to secure it duly canceled of record, and, in place of that mortgage, a note and mortgage for eight hundred dollars were executed by Louis Schie and Minna Schie, now his wife, to Andrew Birrell, the plaintiff, he having purchased the note and mortgage for seven hundred dollars. The note and mortgage to Birrell were given to secure him for the money so secured by the Mengers note and mortgage. 5. On the thirtieth of January, 1854, plaintiff having previously had other transactions with Louis Schie, took from him and wife another mortgage, for thirteen hundred dollars, which sum included the amount of the previous note and mortgage for eight hundred dollars, which were both then canceled. 6. On the fourth day of November, 1852, while the note and mortgage to Walker were unpaid, the defendant Louis Schie conveyed the premises to Minna Hirsch, then sole, but now the wife of Louis, in trust for her two infant children. 7. The defendant Minna Schie resists the foreclosure of the ■ mortgage, upon the ground that the entire interest in the property is in her as trustee for her children. 8. The Court below gave plaintiff a judgment against Louis Schie, for the amount of the note and mortgage, but refused to make a decree for the foreclosure of the mortgage and a sale of the property, and the plaintiff appealed. [107] The decision of this Court, in the case of Dillon v. Byrne, (5 Cal., 455,) is decisive of this case. It is true, there are some slight differences in the facts of the two cases, but the essential principle is the same. In this case, as in that, the land was charged with a debt when the conveyance was made to Minna Hirseh, of which she had due record notice. The fact that the Mongers mortgage was canceled of record, is no evidence of any intention to abandon the lien, for the reason that the new note and mortgage to plaintiff, executed the same day, constituted a part of the same transaction, and must be taken and construed together with the acknowledgment of satisfaction of record. This acknowledgment of record was only evidence of the intention of the parties that the mortgagor should not be held for double the amount. It was evidence only of an intention to merge one in the other, but not of payment. The plaintiff was entitled to the judgment given, and to a decree of foreclosure and sale for the amount of the first note and mortgage. The judgment of the Court below is reversed, with direction to enter a decree in conformity with this opinion.