International Mortgage Bank v. Eaton

STURTEVANT, J.,

pro

tem.

This is an action brought by the plaintiff to foreclose a mortgage against R. W. E'aton and E. Steinhauser, the mortgagors. Judgment went for the plaintiff against a large number of defendants, but George Sully and Matilda Sully are the only defendants who have appealed. They have presented their appeal as under section

[40]

953a of the Code of Civil Procedure. By the record they have made, they make one contest as against the plaintiff and another as against some of their codefendants. As the principles involved are quite different, we will take up the two contests separately in the order as stated above.

1. If the plaintiff’s lien is superior to the claim of the Sullys, the judgment should be affirmed as to the respondent, the plaintiff in the trial court. This question is hardly debatable. When the loan of the money by the plaintiff to the mortgagors was about to be made, it transpired that there were of record certain instruments which the plaintiff desired to be protected against; and the Sullys executed and delivered, before the money was paid over, an instrument, in part as follows:

“Know All Men by These Presents:

“That Whereas, on the 17th day of March, 1913, by written instrument of that date, E. W. Eaton and E. Steinhauser entered into a contract with the undersigned, George Sully, Jr., and Matilda Sully, his wife, which said contract was thereafter recorded and is now of record in Volume 13 of Agreements, page 184, in the office of the County Recorder of the County of Santa Cruz, State of California, and is hereby expressly referred to and made a part hereof; and

“Whereas, the said R. W. Eaton and E. Steinhauser have borrowed from International Mortgage Bank, a corporation, of Apeldoorn, Holland, the sum of Ten Thousand Dollars, and as security for the repayment of the same, have executed and delivered to said Bank, a mortgage bearing date April 19th, 1914, and covering the real property hereinafter particularly described; and

“Whereas, the said undersigned, George Sully, Jr., and Matilda Sully, his wife, ever since the 17th day of March, 1913, have been and now are the sole owners and holders of the said contract so recorded in Volume 13 of Agreements, page 184, Santa Cruz Records.