Payne v. Morey

SMITH, C.

The suit was brought in the lower court to foreclose a mortgage of date September 19, 1898, given by defendant Morey to one Rawson, plaintiff’s assignor, to secure

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the promissory note of thé former to the latter for the sum of five hundred dollars, payable one year after date. The court below gave judgment for the plaintiff against Morey for the amount of the note with attorney’s fee and costs; but it was adjudged that he was not entitled to foreclose; and judgment was rendered for the defendant Stewart that he was the owner of the land described in the mortgage, free of any lien on account thereof, and for his costs. The plaintiff appeals from this portion of the judgment, and the case, as presented by the findings—which are not questioned—is as follows:—

At the date of the mortgage in suit the apparent title to the land mortgaged, as shown by the record, was in the mortgagor, Morey, who was the grantee in a deed from, one Davis, then owner, of date December 27, 1897, purporting to convey to him the land. But the deed was accompanied by a separate instrument, of even date, signed by Morey, showing that it was executed as security for the payment of a note, of even date, from Davis to Morey, for the sum of four thousand dollars. The defeasance, it seems, was not recorded, and from the findings, taken in connection with the answer of the defendant Stewart, it may be inferred that Rawson had no notice of it or of the nature of the transaction when the mortgage was made to him, or afterwards, until the third day of December following; when, it is found, he received such notice.

The plaintiff became the owner of the note and mortgage in suit by assignment of Rawson, September 9, 1899, but does not claim to have acquired any additional rights as purchaser for value without notice. The consideration of the note, it is found, consisted in “services as attorney at law to be thereafter rendered by said . . . Rawson in an action then expected to be soon commenced” by Davis against Morey; which suit was in fact commenced December 15, 1898, and is still pending; and in which Rawson appeared as attorney of Morey, and is still such. But it is found that on the 3d of December, 1898, the date when Rawson received notice of the defeasance, no services had been performed by him as such attorney, other than coming from Alameda County to San Diego, at the request of Morey, November 11, 1898.