Middlecoff v. Hemstreet

HAYNES, C.

This action was brought by the plaintiff, appellant here, to foreclose a mortgage made by defendant C. S. Hemstreet, on April 16, 1896, to Lawrence Middlecoff, since deceased, upon certain lands situated in the county of Riverside, to secure a promissory note of that date for $250, for services to be thereafter rendered, and which mortgage was recorded in the recorder’s office of said Riverside County on April 21, 1896. The defendant Emily Hemstreet is the wife of said mortgagor; and three days after said mortgage was recorded she filed a declaration of homestead upon the same lands described in said mortgage, for the benefit of herself and husband. The court found in favor of the plaintiff, against the defendant C. S. Hemstreet, for the amount due upon the promissory note, but held that the mortgage was invalid as against the homestead, because of the insufficiency of the certificate of acknowledgment to entitle the mortgage to be recorded. No question is made as to the validity of the homestead, except as against the mortgage, nor as to the sufficiency of the findings to support the judgment. The only question discussed and to be decided is whether the certificate of the acknowledgment of said mortgage was such as to entitle it to be recorded. If it was, Mrs. Hemstreet had constructive notice of the existence of the mortgage when she filed her declaration of homestead, and if it was not sufficient, she had no notice, either actual or constructive, of its existence.

The mortgage describes the property mortgaged as situated in the county of Riverside, and the certificate of acknowledgment, as set out in the findings, is as follows:—

‘ ‘ State of California, County of San Diego, ss.

“On this 16th day of April, one thousand eight hundred and ninety-six, before me, J. W. Ryan, a justice of the peace of the township of San Jacinto, in said county, residing

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therein, duly commissioned and sworn, personally appeared C. S. Hemstreet, known to me to be the person described in, and whose name is subscribed to, the within instrument, and he acknowledged to me that he executed the same.

“In witness whereof, I have hereunto set my hand and affixed my official seal, at my office in the county of San Diego, the day and year first above written. Í<T XXT _