Ede v. Johnson

Cope, J. delivered the opinion of the Court Baldwin, J. concurring. This is an action to foreclose a mortgage upon certain shares of the capital stock of the Sears Union Water Company. The plaintiff recovered a judgment, and two of the defendants appeal to this Court. These defendants claim, that by means of certain legal proceedings against the mortgagors, subsequent to the execution of the mortgage, they became the owners of the property in question, and that, as between them and the plaintiff, the mortgage is invalid. The objections to the validity of the mortgage, we think, are not well taken. It was intended to conform to the provisions of the act of April, 1857, in relation to personal mortgages, and we do not see in what respect it is fatally defective. The objections are : First, that it does not appear on the face of the mortgage that it was given to secure a just indebtedness; second, that the residence and occupation of the parties, the sum secured, the rate of interest to be paid, and when and where payable, are not stated with sufficient certainty; and third, that [57] the affidavit is not subscribed by the parties, and does not appear to have been taken by a competent officer. ■ 1. The mortgage was given to secure the payment of a promissory note, which per se imports a valuable and sufficient consideration, and is, of course, prima facie evidence of a just indebtedness. The presumption is, therefore, that the debt is valid, and that the mortgage was executed in good faith to secure its payment. 2. The first section of the act of April, 1857, provides that “ no mortgage, made by virtue of this act, shall have any legal force or effect, except between the parties thereto, unless the residence of the mortgagor and mortgagee, their profession, trade or occupation, the sum to be secured, the rate of interest to be paid, when and where payable, shall be set out in the mortgage.” We think there has been, in the present case, a sufficient compliance with each of these requirements. The parties are stated to be residents of Sierra county, California, which is as specific as the terms of the statute seem to require. The mortgagors are described as late merchants of Pine Grove, etc., and it is objected that this is not sufficient, and that it wag necessary to state their occupation at the time. This requirement of the statute must be regarded as matter of description, intended for the purposes of identification, and not as an indispensable requisite of the mortgage, without which it can have no effect as against third persons. It was not intended that the benefits of the act should extend only to persons having some occupation or profession capable of designation, which is the result of the proposition contended for by the appellants. A mortgage stating that the parties had no occupation or profession would certainly be valid, and the description of the mortgagors in this case as late merchants, etc., is equivalent to a statement that they were not then engaged in any business, and had no occupation. The sum intended to be secured, and the time when, and the place where payable, are stated with sufficient precision. It is objected that the mortgage does not show that the interest is payable quarterly, as provided in the note. According to the strict language of the act, this is not necessary, and the objection being purely technical, no further answer is required. 3. It was not necessary that the parties should sign the affidavit. This is too well settled to require discussion. It sufficiently appears that the affidavit was taken by a competent officer. The official character of the officer is fully stated in the acknowledgment, indorsed on [58] the same paper immediately preceding the affidavit; and besides, this is a matter of which we must take judicial notice. It is contended by the appellants that the mortgage was incomplete without a transfer of the stock on the books of the corporation, as required by the.Corporation" Act of 1853. The provisions of that act relate merely to pledges of stock by delivery of the certificates, and have no effect upon the provisions of the act of 1857, under which this mortgage was executed. The latter act is complete in itself, and to render effectual a mortgage executed under it, nothing more is'required than a compliance with its provisions. The other points are not of sufficient importance to require particular notice. Judgment affirmed.