Rumpp v. Gerkens

Appeal by the plaintiff from a judgment for defendant M. Leonis, and from an order denying a new trial, in the Superior Court of the County of Los Angeles. Howard, J.

Action for the foreclosure of a mortgage made to the plaintiff by Jacob F. Gerkens and wife, of date July 18, 1876. The complaint alleges that the defendant, Miguel Leonis, has, or claims to have, some interest in or claim upon said premises as purchasers, etc., which interest or claim is subsequent and subject to the lien of plaintiff’s mortgage. The answer of the defendant Leonis alleges the execution to him of a mortgage upon the same premises, on the first day of July, 1875, by Gerkens and wife; the commencement of a suit for foreclosure by the said defendant on the twenty-eighth day of May, 1878, against the defendants Gerkens and wife, to which Bumpp was not made a party (the said defendant having no knowledge of Rumpp’s mortgage); the rendition of the decree of foreclosure; a sale under the decree, and the execution of a Sheriff’s deed to said defendant. A cross-complaint was also filed by the defendant Leonis, which, after setting up the same matters as in the answer, alleges that at the time of said foreclosure proceedings, he had no information or knowledge of Rumpp’s mortgage. The answer to the cross-complaint, besides denying the material allegations thereof, alleges that on the nineteenth day of December, 1878 (which was after the decree of foreclosure and before the sale), Gerkens and wife, in consideration of the sum of $3,973.25, and for other good and valuable considerations, viz., $100 in gold coin, and the promise of Leonis to cancel, and cause to be canceled of record and forever satisfied, all and every obligation running to the said Leonis from the said Gerkins and wife, agreed to convey, and did convey to said Leonis, the mortgaged premises.

The findings, besides finding the allegations of the defendant Leonis’ answer and cross-complaint to be true, proceeds as follows:

That upon the nineteenth day of December, 1878, Jacob F. Gerkens and Isidora O. de Gerkens, his wife, conveyed to M. Leonis, defendant, by a-sufficient deed of bargain and sale, all their right, title, and interest in and to the mortgaged and described premises for and in consideration of the indebtedness ascertained by the said decree of December 7,1878, against them and in favor of said Leonis, to them then and there released, to wit, the sum of $3,873.35, and the further consideration of one hundred dollars to them then and there paid by the said Miguel Leonis, and the further consideration of the agreement of the said Miguel Leonis then and there to them rendered to release them as well of record as in fact from every claim whatsoever existing against them or either of ’ them in his favor; that the said conveyance to said Leonis of December 19,1878, was executed upon the faith of the whole and every part of the said considerations, and not otherwise; that the said Leonis had no actual knowledge of the said Bumpp mortgage, nor of the record of the same.