Goode v. Smith

Baldwin, J. delivered the opinion of the Court Terry, C. J. concurring.

Bill filed, alleging that in 1853, plaintiff bought of Smith and Brown a tract of land, known as the “ Kentucky Ranch,” for three thousand two hundred dollars, which sum vendees received and divided; that, at the time of the purchase, Smith and Brown represented that there were no incumbrances on the land; but plaintiff, in 1855, discovered the premises had been mortgaged by S. and B. to one Kidd for one thousand eight hundred dollars, to secure a note due at sixty days, with interest at five per cent, per month from date, (23d April, 1853 ;) that this debt was for money borrowed of Kidd, which S. and B. used in the purchase of another ranch. That, on the 10th April, 1855, it was agreed, in consideration of the premises, between the plaintiff and Smith, that if plaintiff would pay or satisfy this demand of Kidd’s, or get an assignment of it, the amount paid or expended for the purpose, (eight hundred dollars,) should be repaid to plaintiff by Smith by the 10th October afterwards; and that this last ranch—called the “Randolph Ranch”—should be held by plaintiff as security for the sum. An absolute deed was made to the plaintiff by Smith and wife for the Randolph Ranch, and an instrument of defeasance executed by the plaintiff. The bill is brought to foreclose the mortgage thus made.

Brown was not made a party to the proceeding, nor was it necessary.

The defendants answered, denying the allegations of the bill. A jury was empanneled, and rendered a verdict for the plaintiff. [83]The Court decreed in favor of the plaintiff upon the verdict and evidence.

The deed to the Randolph Ranch was executed by Smith and wife. It was acknowledged before a Justice of the Peace. The deed was objected to on the ground of defective acknowledgment on the part of the wife. The acknowledgment is as follows :

“ State of California, i Placer County, j

On this 10th day of April, A. D. 1855, before me, a Justice of the Peace for said county, personally appeared P. H. Smith and Elizabeth Smith, his wife, to me personally known to be the individuals named in and who executed the foregoing instrument of writing, who acknowledged to me that they executed the same freely and voluntarily, and for the uses and purposes therein mentioned, and the said Elizabeth Smith being examined by me separate and apart from her husband, P. H. Smith, and without his hearing, acknowledged to me that she executed the same freely and voluntarily, and for the uses and purposes therein mentioned, without fear or compulsion, and that she did not wish to retract the same, well knowing the contents thereof, after due explanation by me made.