Bank of America National Trust & Savings Ass'n v. Duer

WOOD, J.

This is an appeal from an order of the superior court granting the motion of defendant Duer to recall

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a writ of execution levied upon her real estate and to satisfy the judgment against her.

A judgment was obtained on July 7, 1939, by Bank of America National Trust and Savings Association against defendants Duer and Woosley in the total sum of $8,678.87. The judgment was based upon a deficiency arising after foreclosure of a trust deed upon real estate given to secure a promissory note executed by the defendants. On April 15, 1940, defendant Woosley for herself alone paid to the plaintiff bank the sum of $1,000 and on the same date, in accordance with its agreement with defendant Woosley, the bank caused to be filed in the office of the county clerk a satisfaction of the judgment in the following language: 11 The undersigned hereby acknowledges full satisfaction of the judgment obtained in the above entitled action, and which was entered on the 7th day of July, 1939, as to the defendant, Lizzie D. Woosley, only, and so far as the same can be done without releasing or discharging the judgment debtor, Iva B. Duer, from the balance due on said judgment.”

The bank assigned its judgment on June 6, 1940, to Indemnity Mortgage Guaranty Company and on September 3, 1940, the last mentioned company assigned the judgment to Indemnity Mortgage Securities Company, the appellant herein, and the present owner and holder of the judgment. Thereafter, on November 4, 1940, at the request of the deputy in charge of the judgment department of the county clerk’s office a satisfaction of judgment executed on October 31, 1940, on form No. 5 of the official forms of the clerk’s office was filed by Indemnity Mortgage Securities Company in the following words and figures: “For and in consideration of $1,000.00 to me in hand paid by Lizzie D. Woosley, full satisfaction is hereby acknowledged of the judgment in the above entitled action as to Lizzie D. Woosley, only, for $8,678.87, and $49.75 costs, entered July 7th, 1939, judgment in favor of Bank of America, and against Lizzie D. Woosley only, but not releasing Iva B. Duer, and the clerk is hereby authorized and directed to enter the said satisfaction as above.” On application of appellant the presiding judge of the superior court wrote upon the face of this satisfaction of judgment: “Satisfactory to file this satisfaction and to issue execution against Iva B. Duer.” The clerk thereupon entered the following record: “In consideration of the sum