Mitchell v. Whitford

NICOL, P. J.,

pro tem.

This is an appeal from a judgment of the superior court of Stanislaus County, decreeing

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the foreclosure of a mortgage. The said mortgage was executed by defendants R. A. Whitford and his wife, Augusta Whitford, to one C. L. Flack to secure a promissory note for the sum of $21,864.42, dated April 9, 1913-, payable four years after date with interest at six and one-half peT cent per annum. Subsequent to the execution of the mortgage, the plaintiff became the holder thereof by mesne assignments. Subsequent to the making of this mortgage, the mortgagors deeded the property so mortgaged and it was conveyed repeatedly until the fee vested in the appellant Charles Z. Soule. The plaintiff by his complaint named as defendants the original mortgagors, R. A. WRitford and his wife, Augusta Whitford, and a number of others including appellant. All the defendants, except Charles Z. Soule, defaulted. By the decree, judgment was rendered in favor of plaintiff and against the defendants R. A. Whitford and Augusta Whitford in the sum of $27,707.03, on the note. The decree further adjudged the same a lien upon the land described in the judgment, ordered the land sold to satisfy said sum, provided for judgment against the Whitfords for any deficiency, and foreclosed the rights of the defendant Soule. Defendant‘‘Soule appeals from the judgment in so far as it subjects his land to the lien of the said mortgage, orders it sold, forecloses his rights, and otherwise affects his interests.

The mortgage was recorded on the same day that it was executed, to wit, April 9, 1913. The description of the land mortgaged as given in Finding III is a surveyor’s description. It commences at an established point, a section corner, and then contains some twenty-seven calls, given by courses and distances only. Said description is as follows: “Beginning at corner to sections 7, 12, 13 and 18, township 4 south, range 7 and 8 east, Mount Diablo base and meridian, thence south 0° 10' B. 40 chains, thence south 0° 10' B. 21 chains; thence north 89° 41' east 46.95 chains; thence north 34° 50' west 1.38 chains; thence north 18° 39' west 2.55 chains; thence north 13° 20' west 5.70 chains; thence north 6° 43' east 13.38 chains; thence north 5° 40' east 4.88 chains; thence north 8° 35' west 2.99 chains; thence north 67°