Dodds v. Spring

MELVIN, J,

Plaintiff sued to foreclose a mortgage made by G. 0. Trauzettel and his wife, Georgia A. Trauzettel. The date of the said mortgage was December 1, 1908, and it was intended, as the court found, to cover principal and interest representing two loans evidenced by promissory notes, one dated December 1, 1908, for the principal sum of one thousand five hundred dollars due three years thereafter, and the other for one thousand one hundred and sixty dollars, bearing date April 1, 1909, due two years later. By the terms of the mortgage it apparently covered the west half of section 19, township 2 south, range 1 west, S. B. B. & M., in Riverside County, and was recorded April 8, 1909. The complaint in this action was filed June 30, 1911, and a

lis pendens

was placed of record on that day. Judgment was given in favor of O. S. Dodds, the plaintiff, and this appeal is by A. Spring, one of the defendants, who claimed rights in the property superior to those of the plaintiff.

It appeared from the findings of the court that G. 0. Trauzettel acquired title to the north half of said section 19 prior to August 20, 1908, and remained such owner until October 10, 1910. On December 10, 1910, he parted with his interest in the north half of said section together with other property by a grant deed to William A. Kj oilman, one of the defendants in this action.

Prior to the making of the notes and the mortgage in favor of Dodds, the Trauzettels had borrowed from John Galli three thousand dollars, evidenced by a note, payable in three years, bearing date August 20, 1908, secured by a trust deed in which L. W. Clark was named as trustee. On the same day, August 20, 1908, the Trauzettels had borrowed one thousand dollars from Mary Holmes Wilson, evidenced by a note payable in three years and supported by a mortgage of even date. The trust deed and the mortgage were recorded, the former having priority. Both the mortgage and the trust deed were upon the north half of said section 19 and. the date of their recordation was August 25, 1908.

[414]

Subsequently William A. Kjellman and G. 0. Trauzettel entered into correspondence looking to the exchange of the latter’s property in California for the former’s land in Texas. There was an escrow agreement in writing whereby William A. Kjellman assumed and agreed to pay encumbrances aggregating $8,920 upon the property in Riverside County and other land. The transaction involving the exchange of the lands in Texas for those in California 'was consummated, and on December 12, 1910, a deed bearing date October 10, 1910, was placed of record. The deed recited that the property conveyed (which was the north half and the southeast quarter of section 19) was subject to the note for three thousand dollars and the trust deed in favor of Galli, the note for one thousand dollars and the mortgage to Mary Holmes Wilson. It also specified liens of a mortgage dated September 16, 1908, to secure the payment of a note of $1,120 in favor of O. S. Dodds, and another dated December 1, 1908, to secure a note of one thousand five hundred dollars, also in favor of the plaintiff. The plaintiff did not seek to foreclose the mortgage dated September 16, 1908, but as shown by the testimony and found by the court, the note for $1,120 was merged into and paid by the later note for one thousand five hundred dollars.