Swift v. Kraemer

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

One Bevalk, an unmarried man, in 1854, owned a lot in San Francisco; Leek and Fontacelli had a mortgage of two thousand dollars, and Kraemer a mortgage of one thousand five hundred dollars, on this lot. Bevalk married in 1857, and, after his marriage, made the mortgage, the validity and effect of which this suit questions. His wife did not join in the mortgage. The consideration of this last mortgage was that Kraemer canceled his prior mortgage of one thousand five hundred dollars and gave five hundred dollars in cash, in addition, to Bevalk, and one Eisenhardt paid the prior mortgage of two thousand dollars to Leek and Fontacelli. The release of the old, and the redemp[530]tion of the new, mortgages, were done on the same day. Re-val k’s wife died, and Swift, the plaintiff hero, purchased the mortgaged premises. He claims now that, as he knew that the property was homestead at the time of the last mortgage, he was a purchaser without notice of any adverse claim, and that he takes the title free of the claim of the mortgagee. We do not think so. So far as the five hundred dollars is concerned, probably, within a recent decision, the husband bad no right to incumber the property to that extent. But, as to the debts secured by the original mortgage to Leek and Fontac-elli, and Kraemer, we regard the cancellation of the old mortgages and the substitution of the new, as contemporaneous acts. It was not creating a new incumbrance, but simply changing the form of the old. A Court of Equity, looking to the substance of such a transaction, would not permit a release, intended to bo effectual only by force of, and for the purpose of, giving effect to the last mortgage, to be set up, even if the last mortgage was inoperative. It would not permit Revalk to take Kraemer and Eisonhardt’s money and apply it in extinguishment of a prior incumbrance, and then claim that the property should neither be bound by the new mortgage or the old. These last mortgagees would be, in equity, assignees of the debts they paid, and be subrogated to the rights of their assignors; for, in equity, the substance of the transaction would be an assignment of the old mortgages in consideration of the money advanced. This, in effect, has been held in Dillon v. Byrne, 5 Cal. 455,; Birrell v. Schie, 9 Id. 106; Carr v. Caldwell, 10 Id. 380.

Flor does Swift stand in any better position than Revalk himself. Swift can only claim that he bought with notice of a parol fact—not that he was the purchaser of an apparent legal title, and ignorant of any better title or equity. In other words, he bought with knowledge of the fact, which seemed to show a title in Revalk and wife. But this fact may be explained. What existed in parol might have been explained by parol. The mortgage on record was, at least, sufficient to lead him to inquiry, and then he was bound to make full inquiry. That would have resulted in information as to the true state of things. But we are not aware that it has over been held that a party is estopped by liis own act or deed, or that of his privies. Revalk’s posses