Joseph v. Dougherty

Ross, J.: This action was brought to foreclose a mortgage. The complaint alleged that the defendants “ made, executed and delivered” to the plaintiff a certain indenture of mortgage, by which they granted, bargained and sold, conveyed and confirmed, unto the plaintiff, the lot of land described in the complaint, as security for the payment of a certain promissory note. The defendant, Ann Dougherty, who is the appellant, answered the complaint and denied that she ever “made, executed or delivered” the instrument. After trial, the Court below found that appellant “made, executed and delivered” the mortgage to the plaintiff.

The sole point relied on by appellant for a reversal of the judgment is, that inasmuch as she is a married woman the complaint should have alleged, and the findings should have shown, that she “acknowledged” the execution of the mortgage, in order to have constituted a cause of action against her. But in the case of a married woman the acknowledgment is a part of the execution of the instrument. (Civil Code, §§ 1186 and 1187; Wedel v. Hermann, 59 Cal. 507; Leonis v. Lazzarovich, 55 id. 55.) Until acknowledged it is not executed, but when executed it is acknowledged; for when it is said that an instrument is “executed,” every act is imported which was requisite to make it operative and effective. In this case, acknowledgment being necessary, the averment of the complaint and the finding of the Court, that the mortgage was “executed,” imports that it was “acknowledged.”

Judgment affirmed.

McKinstry and McKee, JJ., concurred.