Robins v. Blake

WILBUR, J.

This is an appeal by the Ehlen Land Company, a corporation, and P. W. Ehlen from a judgment foreclosing a mortgage executed by defendants Harry Blake and Lenore Blake to Francis A. Blake and by him assigned to the plaintiff. Harry and Lenore Blake executed two mortgages for four thousand dollars each to P. W. Ehlen. These two mortgages were both dated April 3, 1914, but in one of them it was recited that it was “subject to a mortgage of even date herewith between the same parties to secure four thousand dollars.” The trial court decided that these two four thousand dollar mortgages were satisfied and discharged on the tenth day of September, 1915, and by reason thereof that plaintiff’s mortgage, which was originally a third mortgage, had become a first mortgage upon the premises. The cross-complaint of P. W. Ehlen seeking to foreclose the two four thousand dollar mortgages was denied and the premises ordered sold to satisfy the lien of the plaintiff’s mortgage. The only dispute in the case is with reference to the nature and validity of the transaction of September 10, 1915. It appears without conflict that at the time of the latter transaction W. W. Johnson was the owner of the second four thousand dollar mortgage and that W. H. Davis was the owner of the first four thousand dollar mortgage. The second mortgage had been assigned to W. W. Johnson in exchange for nineteen acres at Escondido. The first mortgage had been assigned to Davis as collateral security for an obligation of P. W. Ehlen. These assignments were shown by the records and were testified to by the witnesses, and there is no conflict in the testimony, notwithstanding which the court found that “while the Ehlen Land Company was the owner of said [second] note and mortgage, the defendants, Harry J. V. Blake and Lenore M. Blake, his wife, executed a deed of all their interest in the said real property described in said mortgage securing said note, to the Ehlen Land Co., a corporation, defendant herein, in full satisfaction thereof; . . . that thereby said note and mortgage was fully paid and satisfied; that there is at this

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time nothing due and unpaid on said note and mortgage.” With reference to the first mortgage the finding is somewhat different, namely, that the property was so transferred “at the request of said cross-complainant and that said promissory note and mortgage were thereby fully paid and satisfied.” These findings and the conclusions arising therefrom are not sustained by the evidence. The transaction of September 10, 1915, was agreed upon between Harry J. Y. Blake and Alfred T. Burch. Burch was at that time the general manager of the Bhlen Land Company and P. W. Ehlen was the president thereof. Harry Blake testified that P. W. Ehlen represented to him that Burch was his agent in the matter. For the purposes of this appeal we must accept this testimony as true, although it is directly contradicted by Burch. It therefore appears that at the time the transaction occurred Burch was representing both the corporation and P. W. Ehlen. Harry Blake testified on that subject as follows: “Q. With reference to the satisfaction of these two . . . mortgages, did you esk either Mr. Bhlen or Mr. Burch for satisfaction of these mortgages at that time? A. And mentioned just as you have there, no, I did not. Q. Did you make a demand upon the Ehlen Land Company for satisfaction ? A. I was getting satisfaction there, that is what I was there for, and I got it. That is what I supposed I was getting. Q. You did not receive satisfaction on the mortgages though? A. No, I had no writing, . . . Q. You were dealing with Mr. Burch as agent for Mr. Bhlen, why didn’t you demand a satisfaction of these mortgages, if that was your arrangement? A. I don’t know why. When I went in there at that meeting, it was to get out from under this whole thing, and we did arrange and it was satisfactory to me, and I did go out and turn him over my ranch at that time. ’ ’