McNamara v. Oakland Building & Loan Ass'n

CHIPMAN,C.

—Action to restrain the sale of certain land under decree of foreclosure. Defendant h'ad judgment, from which and from the order denying motion for new trial this appeal is taken.

Plaintiffs are husband and wife. J. M. McNamara, being the owner of the land in question, executed a mortgage thereof to defendant’s assignor, in which his wife did not join, and McNamara failing to pay the debt secured thereby, defendant, assignee of the note and mortgage, brought its action to fore

[248]

close, but did not make Mrs. McNamara a party defendant.

Lis pendens

was duly filed; the cause was tried, and judgment ordered for plaintiff in the foreclosure action, whereupon, and before judgment was entered, Mrs. McNamara filed a home•stead on the premises; judgment of foreclosure was shortly thereafter duly entered, and plaintiff in that action being about to cause the sale of the premises, this action was brought by Mrs. McNamara, joining her husband as a party plaintiff. It appeared that the mortage in question “was acknowledged before one Thomas W. Jeffries, a notary public, who was, at the time he took such acknowledgment, a member of the co-partnership firm of Jeffries and White, which firm then owned ten shares of stock of said corporation defendant; J. M. McNamara also owned stock therein at the time he acknowledged said mortgage before said Jeffries; and that said corporation was a mutual corporation.”

The court found that the mortgage was duly and regularly executed and acknowledged. Appellants make the point that this finding is not supported by the evidence.

The principal question presented by appellants is, Was Jeffries disqualified to take the acknowledgment? Appellants rely on

Lee

v.

Murphy,

119 Cal. 364.

The view we have taken of the case makes it unnecessary to decide whether the notary was disqualified.