California Title Insurance & Trust Co. v. Kuchenbeiser

KERRIGAN, J.

This is an action brought to foreclose a mortgage which was given to secure the payment of a promissory note.

The appeal is from the judgment in favor of the defendants taken within sixty days after the entry of the same.

Without any actual notice of the assignment of the note and mortgage, the defendants—the mortgagors—paid the Pacific Coast Savings Society—the mortgagee—the amount due on the note. With the exception of a small payment not questioned all the payments on account of the note and mortgage were made -after the assignment thereof to the plaintiff was recorded. It must therefore be held that the defendants had constructive notice of the assignment, and that, pnless the mortgagee was the authorized agent of the assignee for the collection of the money due on the note payment to the mortgagee would not discharge the liability on the note, unless it also appeared from the record that the mortgagee was in possession of the note and mortgage at the time the payments were made. (Civ. Code, see. 2935;

Rodgers

v.

Peckham,

120 Cal. 238, [52 Pac. 483].)

To save the case from the application of the doctrine of the ease just cited, the defendants took the position in the trial court that the mortgagee had been constituted the agent of the plaintiff, and as such agent received the payments made by the mortgagor, and the court so found.

The only point urged by the plaintiff for a reversal of the judgment is that this finding of the lower court is not sup

[13]

ported by the evidence. With this contention we cannot agree.

A fact in issue may" be proved either by direct evidence of the fact, or by proof of other facts or circumstances from which the fact in issue may be inferred (Code Civ. Proc., see. 1870). In the present case there was evidence that a certain deed of trust, under which the assignment in question was made and to which it referred in terms, contained a provision that the plaintiff should give a power of attorney to the Pacific Coast Savings Society (the mortgagee) to collect moneys due it, including this note; that said mortgagee did as a matter of fact collect such moneys; that the plaintiff never attempted itself to collect the amounts due on the note in suit, and never notified the defendant (mortgagor) of the assignment to it of the note and mortgage—which of course it was unnecessary for it to do if it had constituted the mortgagee its agent for collecting money due on the note—-and, finally, that a similar mortgage made by the defendant to the same mortgagee, and assigned by it to the plaintiff, was released by said plaintiff upon payment thereof being made to the Pacific Coast Savings Society (mortgagee).