Sharp v. Pitman

[502]

ANGELLOTTI, J,

This is an appeal by defendants from .an order denying their motion for a new trial.

On' June 6, 1910, plaintiff and defendant Susie B. Pitman entered into a written contract wherein the latter agreed to pay plaintiff one thousand two hundred dollars in installments of four hundred dollars each, and pledged to him as security for the payment thereof a note of defendant W. H. Pitman of even date for one thousand six hundred and fifty dollars and interest, and a mortgage given her by said W. H. Pitman on the same date to secure the payment of said note, the same covering certain land in Los Angeles and Riverside counties. This note was given by defendant W. H. Pitman to defendant Susie B. Pitman to repay her for four hundred and fifty dollars which she then paid from her own funds to plaintiff, and for the one thousand two hundred dollars additional which she had agreed to pay him, in payment and satisfaction of a claim of plaintiff against said W. H. Pitman for certain services rendered by him as an attorney. Plaintiff had then commenced a suit against said W. H. Pitman therefor, and procured the levy of an attachment therein, and upon the execution of said agreement plaintiff caused the dismissal of such suit and the release of such attachment. On August 24, 1910, said defendant Susie B. Pitman, without the knowledge or consent of plaintiff, entered on the margin of the record of said mortgage a satisfacion thereof, and defendant W. H. Pitman on the same day made a conveyance of the mortgaged property to his wife, defendant Helen A. Pit-man. No part of said one thousand two hundred dollars has ever been paid to plaintiff. All three of said defendants knew at the time of said attempted satisfaction and conveyance that the mortgage and note had been pledged by said Susie B. Pitman to plaintiff, and that the same had not been paid, and such satisfaction of mortgage and conveyance were made for the purpose of defrauding and defeating plaintiff’s rights as pledgee.

This action was brought to enforce plaintiff’s right under the agreement and pledge by having said satisfaction of mortgage vacated and set aside, the conveyance of W. H. Pitman to Helen A. Pitman decreed to be subject to said mortgage, and the note and mortgage sold to satisfy the claim of plaintiff against Susie B. Pitman under said agreement, and to