San Jose Safe Deposit Bank v. Bank of Madera

McFARLAND, J.

This is an action to foreclose what plaintiff designates as an “equitable mortgage,and judgment went for plaintiff as prayed for. The defendant the Bank of Madera appeals from the judgment and from an order denying its motion for a new trial; and the defendants Charles A. Dworack and Mary Dworack appeal from the judgment.

Under our views of the case it is not necessary to state the facts with much detail or to consider all the points made by appellants. The facts material for the purposes of this decision are these: On March 4, 1893, defendant Charles Dworack, being the owner of the land here .involved, mortgaged it to one Roberts as security for three thousand dollars which said Charles then owed Roberts. Afterwards, on January 10, 1894, he made a second mortgage of the premises to his mother, the defendant Mary Dworack, to secure the sum of eighty-five hundred dollars. Afterwards Roberts commenced an action to foreclose his mortgage. During the pend-ency of that action Charles Dworack made to his mother a deed purporting to convey the land to her. Afterwards the

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action of Roberts resulted in a decree of foreclosure under which the land was sold to Roberts for $3,515, and he received a certificate of sale. This decree and sale were regular and valid, and no question is raised as to any of the proceedings on the foreclosure. But during the period of redemption the defendant Mary Dworaek, being desirous of redeeming from the sale, procured from plaintiff for the purpose of making the redemption a loan of $3,750, and with this money she did accomplish the redemption. At the time of this redemption said Mary executed a certain written instrument, designated as exhibit “E,” dated February 18, 1895, to one Moultrie, who took the same for the benefit of plaintiff, and afterwards and before the commencement of this action assigned the same to plaintiff. By this instrument the said Mary did “grant, bargain, sell, assign, transfer, and set over” to Moultrie “all my right as redemptioner, or otherwise, by reason of the redemption this day made by me”; also “all sums of money of every kind, character, and description which may at any time become due or owing to me from said sheriff, or otherwise, in the event said property be at any time redeemed by any other person or persons.” By this instrument she also authorized and empowered Moultrie in her name to take all steps necessary to protect his interest, and in the event that no other redemption be effected to obtain from the sheriff-