Jones v. Baxter

BARDIN, P. J.,

pro

tem.

This action was brought to foreclose a mortgage given by Edward A. Baxter upon real property in Humboldt County to secure the payment of a promissory note in the sum. of $700. The defendants

[591]

John F. Dufur and his wife, A. D. Dufur, appeal from the judgment rendered in favor of the plaintiff Jones and also include in their notice of appeal a purported áppeal from the order denying their motion for a new trial.

[1]

While it is proper on an appeal from the judgment for us to review such an order, yet an appeal therefrom is now unauthorized and should be dismissed. (Secs. 956, 963, Code Civ. Proc.;

Roberts

v.

Colyear,

179 Cal. 669, [180 Pac. 937].)

The trial court determined that there was due, owing, and unpaid to the plaintiff upon said promissory note and for money expended under the terms of the mortgage the sum of $397.47, and also the further sum of $108.85 for attorney fees and costs incurred in the action, aggregating in all $506.32, for which defendant Baxter was personally liable, and declared that such sum was secured to be paid by the mortgage referred to. The usual decree directing the sale of the mortgaged premises to satisfy such indebtedness, attorney fees, and costs followed.

[2]

The principal point relied upon for a reversal of the judgment is founded upon the claim of appellants that at the time the mortgage was given to Jones, the mortgagor Baxter owned but an undivided one-third interest in the mortgaged property, and that at that time A. D. Dufur owned the remaining two-thirds interest, and that Jones accepted the mortgage with full knowledge of that fact. The trial court found against this claim, and it is now urged that such finding is without proper support in the evidence. We have carefully examined the record and find that .there was ample testimony adduced at the hearing to support the finding complained of. The evidence shows that Jones, while the owner of the premises described in the mortgage, entered into a verbal agreement for the sale thereof to Baxter and John F. Dufur, who was acting as the agent of his wife, A. D. Dufur, whereby it was agreed that Jones would sell the premises, together with certain livestock thereon, for the sum of $2,000. Jones, Baxter, and John F. Dufur all met in the latter’s office on September 29, 1914, to consummate the" oral agreement of sale, and Dufur, who was an attorney at law, thereupon prepared a deed for the signatures of Jones and his wife, whereby the premises were, to be conveyed to Baxter. Jones signed the