De Leon v. Higuera

Baldwin, J. delivered the 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 [495] the cause assigned. O’Donnell was a proper, if not a necessary party to the decree of foreclosure, and whether the complaint was faulty in praying to hold him as trustee or not, the complaint was not demurrable on account of this defect of the prayer. (Rollins v. Forbes et al. 10 Cal. 299.) 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 [496] gages, and this averment does not seem to be denied in the answer. We think the land sufficiently described within the case of Green et al. v. Stanley, and no point can be made on the failure to record, because it seems that O’Donnell had actual notice. 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.