Withers v. Little

Thornton, J.: The plaintiff instituted this action for the foreclosure of a mortgage alleged to have been executed to him by Milton Little and Mary, his wife. The complaint is in the usual form. The mortgagors above mentioned, and David Jacks, were made de[371]fondants. The mortgage to plaintiff was executed on the 11th day of December, 1875, to secure a promissory note bearing date and executed on that day, due twelve months after date, and payable to the plaintiff or order. This mortgage is alleged to have been recorded in the proper office, on the 16th of December, 1875. Little and wife suffered default.

Jacks filed an answer and cross-complaint, in which he avers that, on the 21st day of July, 1874, the defendants Little and wife were indebted to him in the sum of $5,000; that on that day they executed to 'him their promissory note, due twelve months after date, for the sum above mentioned, with interest, etc.; that on the same day, to secure the payment of this note, they executed to him a mortgage, in which was embraced, together with other parcels of land, the lots included in plaintiff’s mortgage. All of the land referred to is situate in the county of Monterey. It is further stated in this pleading, that the mortgage to Jacks was recorded on the 2nd day of June, 1876, and that on or about the 11th day of December, 1875, and before the execution of the mortgage to plaintiff, the .defendant Milton Little informed plaintiff that he and his wife had executed to Jacks the mortgage above mentioned, to secure the payment of the note for $5,000, above referred to ? that tit (the mortgage) was then in existence, and prior to the mortgage to plaintiff; and that plaintiff took his mortgage with full knowledge of the execution and existence of Jacks’s mortgage. Jacks prayed for a judgment for the amount due on his note against Little and wife, for a foreclosure of his mortgage, and that the mortgage of plaintiff be declared to be subsequent to his mortgage. No answer was filed to this cross-complaint.

The cause came on for trial, and the Court found, among other facts not necessary to be here further referred to, that plaintiff’s mortgage, though executed after the mortgage to Jacks, was first recorded; that the plaintiff had no notice of the mortgage to Jacks at the time of the execution of his mortgage, and not until the 2nd day of June, 1876, on which day it (the Jacks mortgage) was recorded.

The decree of the Court postponed the Jacks mortgage to that of plaintiff. From this decree, Jacks prosecuted an appeal.