Craig v. Gomes

KOFORD, J.,

pro tem.

This appeal is on the judgment-roll, and the following statement of facts is taken from the findings:

J. L. Rankin (plaintiff’s assignor) and his wife, on July 12, 1913, executed a three thousand dollar mortgage due in one year, 1914, to Lillian R. Higman. This mortgage was assigned by the mortgagee and her successors several times, and came at last, on January 5, 1914, to defendants L. R. Gomes and Mary Gomes, his wife. After the making of said mortgage Rankin and wife transferred or sold the mortgaged premises to James Lomas, his wife, and William R. Orr, and the said grantees either coincidently or later (the findings do not show which) executed to said Rankin a second mortgage on the property for fifteen hundred dollars on May 4, 1914. This is the mortgage which plaintiff, as the assignee of said Rankin and wife) foreclosed in the court below. On September 11, 1916, the Lomases and said Orr, who had purchased from the Rankins as aforesaid,

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conveyed the property to defendant L. R. Gomes and Mary Gomes. Thereupon Gomes and wife were the owners of the property, and also the mortgagees in the first mortgage, and the mortgage had not then outlawed. Then on September 29, 1916, Mary Gomes transferred to her husband L. R. Gomes all her interest, both in the property as a part owner, and in the said three thousand dollar mortgage, as mortgagee. The defendant L. R. Gomes has been the owner and in possession ever since the last-named date. It is therefore to be seen that the defendant went into possession before his mortgage outlawed.

This suit by plaintiff to foreclose the second mortgage of fifteen hundred dollars was commenced shortly after the first mortgage had become barred by the statute of limitations. The decree of foreclosure provides that the first mortgage of three thousand dollars, although barred by the statute of limitations, is a first lien and prior to the lien of plaintiff’s fifteen hundred dollar mortgage.

The sole question on appeal raised by plaintiff is, that the first mortgage should not have been given a priority over his mortgage on account of its being outlawed.

Plaintiff does not contend that there has been a merger, and merger is not applicable under the facts. (See