Post v. Becker

[393]

CHIPMAN, P. J.

Plaintiff commenced the action to foreclose a mortgage upon the real property in question given to secure the payment of a promissory note executed by defendants, Beckers, to plaintiff. Hubbard was made a party defendant as having an interest in the property. Plaintiff’s rights in the action are not disputed and need not be considered. Hubbard answered by way of cross-complaint, seeking to foreclose what he claimed to be a second mortgage upon the property. This document was in form a grant, bargain, and sale deed of the premises, dated October 9, 1905, and was duly recorded, February 10, 1906. It was alleged, in an amended cross-complaint, filed before the trial, that this deed was intended as a mortgage to secure the indebtedness then (at its date) due from the Beckers to the firm of Hubbard and Carmichael Bros.; also to secure Hubbard against any liability that might.arise out of a certain bond, in the sum of five hundred dollars, given by him as security for Becker in an action about to be commenced by him against one Mrs. Schmidlin, for slander; also to secure all other indebtedness that might thereafter (after October 9, 1905), become due from the Beckers to T. B. Hubbard, or Hubbard & Carmichael Bros.; “that at the time of the filing of this cross-complaint, to wit, on September 6, 1910, there was and still is due, owing and payable and unpaid from the said Adolph Becker and Amanda Becker, his wife, to the said T. B. Hubbard the sum of three thousand dollars.” It was further alleged, and the court so found, that the claims of Hubbard & Carmichael Bros, were assigned to Hubbard before the action was commenced.

The Beckers answered and alleged that, at the time of the execution of the deed, October 9, 1905, Will M. Beggs was their attorney and also the attorney of Hubbard and Hubbard & Carmichael Bros., and that in his capacity as such attorney he represented to the Beckers that the deed was given as security to indemnify Hubbard against any liability under said bond above referred to, in which said suit against Schmidlin the said Beggs was Becker’s attorney, and that all liability incurred by Hubbard on said bond has been paid. Section 337 of the Code of Civil Procedure was pleaded in bar of the action, but is not now urged. It was further answered:

“The cross-complainant and Hubbard & Carmichael Brothers have at different times during two years last past waived