McCain v. Burch

TUTTLE, J., pro tem.

This is a suit brought to cancel a certain mortgage given by appellant and her husband to respondent, and covering the separate property of appellant. Judgment was rendered canceling said mortgage, upon certain conditions being complied with. The appeal is from that portion of said judgment which contains said conditions, and is based upon the judgment-roll.

The following allegations appear in the complaint: That respondent was the attorney for the husband of appellant George McCain, now deceased; that said McCain was in financial difficulties, and said attorney advised appellant that in order to protect her real property from her husband’s creditors, she mortgage the same to him; that at this time appellant was the sole owner of certain real prop

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erty which is described in the mortgage; that pursuant to said advice of said attorney, appellant executed the mortgage in question to him. The amount of said mortgage was $15,000, and it was given to secure the payment of a note dated August 11, 1922; that said note and mortgage were obtained by respondent through undue influence and without consideration, and‘that the execution of said documents was procured by respondent wrongfully and fraudulently and with intent to defraud appellant. Cancellation of said instruments is prayed for.

Respondent filed an answer admitting the execution of said instruments, but denying all the other allegations of the complaint. He also filed a cross-complaint, praying for a foreclosure of said mortgage. The answer alleged that the note and mortgage were given as security for the amount due respondent on account of legal services, and costs advanced in connection therewith.

The court found that the note and mortgage were obtained

without consideration

and under undue influence. It further found, however, that appellant’s husband employed respondent, during the month the said instruments were executed, as his attorney, and that there was due from appellant to respondent the sum of $3,500 as an attorney fee and $235 costs advanced by him, making a total of $3,735. As conclusions of law, the court “decides” that appellant is entitled to judgment against respondent, requiring him to surrender to appellant the said note, and is entitled to have the said mortgage released of record, “and that as a condition precedent to the surrendering up of said note and the releasing of said mortgage, said plaintiff and cross-defendant shall pay to the said Burch, within sixty (60) days of date of judgment herein, the sum of Thirty-five Hundred Dollars ($3500.00) attorney’s fees, and the further sum of Two Hundred Thirty-five Dollars ($235.00) disbursements made by the said defendant and cross-complainant Charles E. Burch for and on behalf of said plaintiff and cross-defendant Belle McCain, making a total sum of Thirty-seven Hundred Thirty-five Dollars ($3735.00), without interest and without costs.”