Continental Bldg. Etc. Assoc. v. Boggess

SLOSS, J.

This is an action to foreclose a mortgage given by Emma A. Boggess and Riley A. Boggess to plaintiff to secure the payment of a promissory note for three thousand dollars. The defendants had judgment, from which, and from an order denying a motion for a new trial, plaintiff appeals.

Upon a former appeal

(Continental Building & Loan Assoc.

v.

Boggess,

145 Cal. 30, [78 Pac. 245]), this court reversed a judgment of foreclosure entered in favor of plaintiff. That judgment followed an order of .the trial court striking out certain allegations of the answer of the defendants. The holding on appeal was that these averments constituted a good equitable defense- to the action. This holding is binding on the present appeal, as the law of the ease, and its correctness is not, in fact, questioned.

Upon the second trial the court below found that the facts so averred were, true. The principal contention of the appellant is that the evidence falls to support these findings.

The findings on the. special defense set forth in substance these facts: Before and at the time of the execution of the note and mortgage in suit, Riley A. Boggess was interested in certain mining property in Colusa County known as the Abbott mines- and" owned a majority of the capital stock of the Empire Quicksilver Mining Company, a corporation which held options on said Abbott mines and other mining ground. The property covered by the mortgage here sued upon was the separate property of Emma A. Boggess and she borrowed from plaintiff the- three thousand dollars secured by said mortgage and loaned said sum to the Empire Quicksilver Mining Company. Thereafter and up to November, 1900, William Corbin, who was a director and the secretary and manager of the plaintiff corporation, advanced from time to time large sums of" money aggregating one hundred and sixty-five thousand dollars to the Empire Quicksilver Mining Company for the operation and development of said Abbott mines. Of this sum one hundred and fifty-nine thousand dollars was taken by him from the funds of the plaintiff. Upon the discovery by the directors of the plaintiff corporation that Corbin had so misused the corporate funds, Corbin assigned and

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