Vollmer v. De Castillo

Appeal from a judgment of the Superior Court of San Luis Obispo County.

The action was brought to obtain a judgment against the defendant for money alleged to be due upon a promissory note, and to foreclose a mortgage alleged to have been given by her to secure the note. The complaint alleged that the defendant, a married woman, executed the mortgage, that it was duly acknowledged by her, but that the notary in his certificate of acknowledgment erroneously described her by the name of “Gregorio” in place of “ Gorgonia.” The complaint prayed for a correction of the certificate, and that the mortgage, after being reformed, be foreclosed. The court found in effect that the defendant was a married woman at the time of the alleged execution of the mortgage, but that she never executed or delivered it; that she was never made acquainted with its contents by the notary, and that she never acknowledged to the notary that she executed it, or that she did not wish .to retract the execution; that the name of the defendant was not misspelled in the certificate of acknowledgment, but that said certificate contained as the name of the person purporting to acknowledge the execution the name of a different person. As conclusions of law, the court found, that the plaintiffs were entitled to judgment against the defendant for the amount due on the promissory note; that the certificate of acknowledgment should not be altered or corrected, and that the mortgage was not a lien upon the ■defendant’s land, and that the plaintiffs were not entitled to a decree for its foreclosure. The further facts are stated in the opinion.