Goldner v. Spencer

KERRIGAN, J.

This is an appeal by the defendant, Thos. E. Curran, as administrator of the estate of Elizabeth Cullen, deceased, from a judgment in plaintiff’s favor, and from an order denying said defendant’s motion for a new trial. The facts of the case as disclosed by the record are

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these: In the month of November, 1904, the defendant, William Crane Spencer, borrowed the sum of three thousand dollars from Elizabeth Cullen, giving his promissory note therefor. In the month of December of the same year he received the additional sum of seven thousand dollars, which he was to invest for her. Mrs. Cullen died in the year 1906, and the defendant, Thos. E. Curran, was appointed her administrator with the will annexed, and in that capacity brought an action against William Crane Spencer to recover both the money he had borrowed and the sum which had been intrusted to him. In that action judgment was rendered in favor of the administrator for the sum of $10,946.46, with interest and costs, on March 22, 1908. A transcript of this judgment was recorded in the county of Placer on the sixth day of April, 1908, and it then became a lien upon whatever interest said Spencer then had in the property lying in said county and being the subject of the present action.

. In the meantime, and in the early part of the year 1907, William Crane Spencer had gone to Paris, France, and there and during that year had executed his note and mortgage for the sum of twenty-one thousand dollars covering the Placer County property to Edward C. Goldner, plaintiff in this action, who was a half-brother of Spencer, and a resident of Paris. The mortgage was recorded in' the county of Placer on March 16, 1908, prior to the recordation there of the transcript of the judgment obtained by Curran. The present action to foreclose said mortgage was commenced in the month of September, 1909, in the county of Placer. The defendant Curran appeared in said action and set up the issue of fraud in the transaction between the plaintiff Goldner and William Crane Spencer, invalidating said note and mortgage, or at least subordinating the same to the Curran judgment. The trial court found upon this issue in Curran’s favor, but upon appeal to the supreme court this finding was held to be unsupported by sufficient evidence and the judgment was reversed. The case is reported in