Rees v. Vieira

HART, Acting P. J.

Plaintiff brought this suit to enforce the payment of a promissory note for the sum of $7,850, executed jointly by Eugene Joseph Wiegand and his wife, Mary Agnes Wiegand, in favor of Irrigosa Land Company, and, to that end, to obtain a decree foreclosing a mortgage at the same time given by the makers of said note on a tract of land, situate in Madera County, and containing 123% acres, to secure the satisfaction of said obligation. The case was tried on the complaint and the amended answer thereto. The action was dismissed as to certain of the defendants, some of whom were fictitiously named in the complaint. Upon general findings in favor of the plaintiff, judgment was entered against the remaining defendants, W. S. Vieira, A. Manaschian, Paul C. Manoogian, and K. P. Michaelian, for the principal sum ($7,850), together with accrued interest in the sum of $1,442.50 on the principal sum, the two aggregating, in amount, the sum of $9,292.50, and also foreclosing the said mortgage and ordering the sale of the mortgaged property.

[665]

This appeal is by the defendants, W. S. Vieira and his wife, Mamie A. Vieira, from the judgment, on the judgment-roll alone.

The note in suit and the mortgage given to secure the same were, as is usual in such cases, simultaneously executed in favor of and delivered to Irrigosa Land Company a corporation, by Eugene Joseph Wiegand and his wife, Mary Agnes Wiegand, for the sum of $7,850. The instruments were dated April 3, 1919, and the note was to mature and become payable on or before the first day of October, 1920. The real property upon which the mortgage was given was, at the time of the execution and delivery thereof, as indicated, owned in fee simple by said Wiegand and his said wife. On or about February 10, 1920, said Irrigosa Land Company assigned and transferred said promissory note and said mortgage to the plaintiff herein, and the complaint alleges that “plaintiff ever since has been and is now the lawful owner and holder of said promissory note and said mortgage.”

On the sixth day of April, 1920, the defendant W. S. Vieira, succeeded by purchase to the title and interest of said "Wiegand in and to the mortgaged land, subject to said note and mortgage, and assumed and agreed to pay said note and so satisfy or discharge said mortgage.

In view of the conclusion at which we have been required by the record to arrive relative to this appeal, it is unnecessary to recount herein in detail other transactions relating to said land following that of the acquisition thereof by Vieira and others. It is sufficient to explain generally that the complaint states that Vieira and one Titman and his wife entered into a contract, whereby the latter, upon certain specified conditions, and subject to the note and the mortgage in suit, purchased said land; that subsequently said Titman and wife sold and assigned said contract to A. Manasehian and several other Armenians, who became thereby the joint owners of said contract. This transaction was, of course, subject to all the conditions set forth in said contract as it was originally framed and executed by the Titmans and Vieira, one of which conditions was that the sale was to be and was subject to the note and the mortgage which constitute the .subject matter of this action; that said Manasehian and his associates, on purchasing