Tolman v. Smith

Foote, C. This is an action to correct a defective acknowledgment to a mortgage as against Eunice W. Smith, a married woman, and others, and to foreclose the same. William Reed intervened in order to foreclose two mortgages upon the property included in the instrument sought first to be foreclosed. Plaintiff, Tolman, pleaded full satisfaction of Reed’s mortgages. The court found in favor of the plaintiff on that issue. Judgment was rendered by that tribunal in favor of the plaintiff against Eunice W. Smith as prayed for, and that the mortgages of the intervenor, Reed, be canceled and declared satisfied. Eunice W. Smith and Reed are the only parties who appeal from the judgment and an order denying a new trial.

The answer of Eunice W. Smith denied that she had acknowledged the mortgage sought to be foreclosed against her in the manner required by sections 1186 and 1191 of the Civil Code, and alleged that she “was not made acquainted with the contents of said instrument, without the hearing of her said husband, by a notary public or other officer authorized to take such acknowledgments,” and further alleges “that she did not acknowledge to such officer that she had executed said instrument, and did not wish to retract such execution, and that defendant therefore denies that she executed a mortgage to secure the payment of said note, or at all, as is alleged in said complaint.” The defendants objected to the introduction in evidence of the mortgage, but the objection was overruled, and that instrument was admitted in evidence. The defendant Eunice W-. Smith also set up in her answer, upon which the court [347]made no finding, that she signed the note which the alleged mortgage was intended to secure, not for any debt of her own, but for and on account of an antecedent debt of her husband. The court found that as a fact the property included in the mortgage was her separate property, and that the mortgage was never acknowledged by her in the manner and form or substantially as required by sections 1186 and 1191 of the Civil Code of California; that at the time she signed said mortgage she had full knowledge of its contents, derived, however, solely from her husband, and that she signed the same for the purpose and with the intent of charging the real estate therein mentioned with a mortgage lien to secure the payment of a promissory note which she had signed with her husband, but that she was not at that time nor at any other time made acquainted with the contents of the mortgage by the notary public who took her acknowledgment thereto, and that she never acknowledged to said notary public, without the hearing of her husband, that she did not wish to retract the execution of said instrument. As a conclusion of law based upon this state of facts, the court found that “the plaintiff’s mortgage was never duly acknowledged by Eunice W. Smith as a married woman, but that in equity the plaintiff is entitled to have his lien declared and enforced according to the intention and purpose of the parties as hereinbefore found.”