Miller v. Hicken

McFarland, J. This action was brought by plaintiff to foreclose a mortgage executed to him by defendant Hicken July 1,1881, to secure a note for twelve thousand dollars and interest, upon the southeast quarter and the west half of section 2, township 11 north, range 5 east, Mount Diablo base and meridian. Johnson and wife were made defendants, as claiming some interest in the land; and they answered, averring that on January 11, 1888, plaintiff had released and discharged said mort[231]gage; that afterwards they purchased ¿he land from Hicken; and that they are owners and in possession of the land, unencumbered by the alleged mortgage of plaintiff. Wittenbrock intervened, also averring the release and discharge of said mortgage, and alleging further, that when Johnson purchased from Hicken he gave to the latter, to secure part of the purchase-money, a mortgage on the land for the sum of six thousand two hundred dollars, and that afterwards intervener loaned money to Hicken, and took said mortgage from Johnson as security. He prayed that his mortgage be decreed to be superior to-that of plaintiff, and that it be foreclosed. Hicken made -default. Plaintiff alleged, in an amended complaint, that the release was made by mistake, and asked to have it reformed. The court found in favor of the intervener, and Johnson and wife, finding, however, that the release was made through mistake, and decreed that the mortgage held by intervener be foreclosed, that the surplus, if any, after sale be paid to Johnson, and that plaintiff take nothing by his action. Plaintiff appeals from the judgment, and from an order denying a new trial.

There are a number of points made by appellant; but the first and main question in the case is, whether or not a certain written instrument, duly executed and acknowledged by plaintiff on January 11, 1884, and duly filed and recorded the next day, was a full and operative release and discharge of said mortgage from Hicken, which is the basis of this action. The said mortgage embraced not only the said southeast quarter and west half of said section 2 in township 11, but also several other parcels of land, and the said instrument is as follows:—

“Know all men by these presents, that I, Alexander Miller, of El Dorado County, state of California, do hereby certify and declare that a certain mortgage, bearing date the first day of July, 1881, made and executed by John B. Hicken, of Placer County, state of California, the party of the first part therein, to Alexander Miller, the party of the second part therein, conveying the north