Russell v. Mixer
Before: Wallace
Synopsis
Mistake in Satisfying Instead of Assigning a Mortgage—Relief.— Where the owner of a mortgage agreed to assign it to a third person, and at his request entered a satisfaction of record, both supposing that would carry out their intentions; held, upon a proper complaint by the intended assignee against the mortgagor, setting up the facts, that equity would relieve against the mistake and decree a foreclosure of the mortgage. Curing Mistakes of Parties’ own Ignorance or Inattention.—Equity will grant relief against a mistake by which parties, through their own. ignorance or inattention, fail to select or prepare a proper kind of instrument to effectuate their agreement and intention, the same as if such mistake were made by a scrivener.
Defective Complaint.—When a complaint is defective in manner rather than in matter, if no objection is taken by demurrer, it will be held sufficient to support a judgment.
By the Court, Wallace, J.: This cause was recently here upon a former appeal (39 Cal. 504), and, upon its return below, an amended complaint was filed, averring in substance that, after the assignment of [477]the five hundred dollar note by Miller to Russell, an agreement was made between them (to which the mortgagors, Mixer and wife, were not parties, ¿nd of which they had no knowledge), to the effect that Miller should assign the one thousand five hundred dollar mortgage to Russell,- in order to enable the latter to more effectually control it; that, with this view, Russell and Miller proceeded together to the Recorder’s office; that, when they arrived there, Miller, at the suggestion of Russell, entered a satisfaction of the mortgage upon the,record—both he and Russell supposing that the previous agreement to assign it would be effectuated thereby, and both being surprised when they afterwards learned that they had, thereby, wholly discharged the lien of the mortgage, instead of keeping it on foot in the hands of Russell, the plaintiff, as they intended to do.
There is no controversy between Miller and the plaintiff, but the mortgagors, Mixer and wife, insist that the mortgage lien, which was removed by the entry of satisfaction, should not be restored nor the satisfactión canceled.
The Court below having entered a decree against them, they bring this appeal, and the only question presented, is whether or not, upon the facts stated in the amended complaint, the plaintiff is entitled to the relief he obtained.
We think that there can be no doubt that he is. The agreement between Miller and himself was for an assignment and transfer of the mortgage—the mistake occurred wholly in the selection of the means by which this agreement was to be effectuated.
There is no appreciable distinction between this case and that where a scrivener, through ignorance or inattention, fails to select or prepare such an instrument as effectuates the previous agreement of parties, and relief is always decreed in that case. (1 Story Eq. Jur. Sec. 115.) Had the Recorder here, upon being informed by the parties that the agreement between them was that the mortgage in question [478]
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