Security Mortgage Co. v. Delfs

NOURSE, J.

Defendant and cross-complainant appeals from a judgment in favor of plaintiff foreclosing a mortgage executed by the defendants John and Rosa Delfs to one Gore, in February, 1917, and assigned by him to appellant in March, 1917, and thereafter on July 26, 1917, assigned by Gore to respondent. The facts material to the case are that, after the execution and delivery of the note and mortgage, Gore, the payee thereof, assigned both on a separate paper to appellant as security for the payment of an independent debt due from Gore to appellant; that thereafter and on July 18, 1917, appellant, acting through its regularly employed note teller, delivered the note and mortgage to Gore, taking his receipt therefor; that on July 26, 1917, Gore assigned the note and mortgage to respondent as security for the payment of ten thousand dollars borrowed by him from respondent at that time; that thereafter and on the twenty-first day of September, 1917, appellant duly recorded its assignment of March, 1917, and four days later respondent’s assignment of July 26th was recorded. The

[601]

action was commenced by respondent to foreclose the mortgage so assigned to it and appellant intervened, claiming to be the owner of the note and mortgage as a prior assignee.

The trial court found that respondent was the owner of the note and mortgage at the time of the trial, that appellant was estopped from claiming ownership, and that the note and mortgage had been voluntarily delivéred to Gore by appellant. These findings are attacked by appellant— the first two as being insufficient 'to support the judgment, the last as not being supported by the evidence.

[1]

First giving consideration to the attack upon the finding of voluntary delivery of the note and mortgage, it appears that the evidence was conflicting, a portion of it having been given by deposition and this being contradicted by appellant’s witnesses during the course of the trial. The evidence was that the documents were voluntarily delivered to Gore by the regularly employed note teller of the bank, who took Gore’s receipt upon a printed form of receipt for collateral furnished him by the bank for the purpose. The teller testified that he had been specially authorized by the bank president to so deliver collateral to Gore whenever he wanted it and that it was a customary and frequent thing to do if the particular form of receipt was signed. The only conflict in the evidence as to this point was in the testimony of one of the witnesses for appellant to the effect that the authority given the note teller was restricted so that he should not permit Gore to take the documents away from the bank premises. Upon such conflict this court is bound by the finding of the trial court.