Scrivener v. Dietz

McKee, J. -This is an action against C. M. Grant, mortgagor, and other defendants, alleged claimants of subsequent liens upon the mortgage property, for the [2]recovery of - judgment against the mortgagor, and the foreclosure of a real estate mortgage given by him on the 22d of December, 1875, to the London and San Francisco Bank, Limited, to secure payment of an indebtedness of five thousand dollars and interest, and such other sums, with interest, as the said bank might advance to the said -Grant after the date of the mortgage.

Of the defendants, Grant made default, and the defendants Dietz, McAfee, and Spiers, in their answer, averred that they had acquired an interest in the mortgage property by a writ of attachment, issued in an action commenced on the 22d of January, 1876, by McAfee and Spiers against the said Grant, in which they afterwards recovered judgment ' against him, upon which an execution was issued, under and by which the attached property was sold at sheriff’s sale to them, and they, in due course of time, received a sheriff’s deed for the same, and they claim that the interest thus acquired is not subject to the mortgage lien of the plaintiff, but is superior thereto, because: 1. Whatever advances were made by the bank to said Grant were made after notice to the bank of the acquisition by the defendants of their interest and right in the mortgage property under said attachment; 2. Because the cause of action upon advances which were made was barred by the statute of limitations at the commencement of the action; and 3. Because the mortgage itself was merged in a deed of the property which the mortgagor executed and delivered to the bank.

At the trial of the issues framed by the complaint and answer, the execution and registration of the mortgage were admitted; and after the plaintiff had given evidence tending to prove that the sum of the original indebtedness of five thousand dollars, and the future advances which were made by the bank from the date of the mortgage until the 31st of January, 1879, amounted to $9779, and were due and unpaid, the defendants, to maintain the issues on their part, first offered the affidavit and [3]writ of attachment, together with the return thereon, issued in the action of McAfee and Spiers against the said C. M. Grant. But the plaintiff objected to the affidavit, and the attachment and the return thereon, “ because the affidavit was defective for non-compliance with the code, and a nullity; that it is void for irregularity, and conferred no authority upon the clerk to issue an attachment; that as evidence it was incompetent and irrelevant and inadmissible; that even if, stricti juris jit was only voidable and not void, it laid no foundation for the issuance of an attachment which could be operative against the rights of plaintiff or plaintiff’s assignor under the mortgage,” etc.