Brown v. Rouse

McFarland, J. This case was here on a former appeal. (Brown v. Rouse, 93 Cal. 237.)

The original complaint alleged these facts: On November 18, 1887, the defendant, Charlotte Bouse, a married woman, by her alleged attorney in fact, G. M. Bouse, who was her husband-, made and executed to plaintiff her promissory note for $1,200, and a mortgage to secure the same on certain land which was her separate property, situated in Santa Clara county, California. She properly acknowledged the power of attorney under which the mortgage was executed, but the notary neglected to recite in his certificate that she was examined apart from her husband, etc. At that time there was a previous mortgage on the land for $400, executed by said Charlotte to one Davis; and, at the time of the execution of the mortgage sued on, the said Davis mortgage was satisfied out of the $1,200 for which said mortgage sued on was given. It was alleged that said Charlotte “procured plaintiff to pay and satisfy said (Davis) lien and mortgage,” and that he did pay it at her request. The prayer of the complaint was that the certificate of the notary be corrected; that plaintiff be subrogated to the rights of Davis under his mortgage, and that the [674]mortgaged premises be sold, all the parties defendant foreclosed, and a deficiency judgment docketed against ■the said Charlotte. The court found that the said power ■of attorney gave the husband no right to make said note and mortgage. It also found that the Davis mortgage had been paid by plaintiff, but that the payment was voluntary, and denied the subrogation. The court, however, gave a personal judgment for plaintiff against Charlotte for the amount of the note. Upon appeal the judgment was reversed for the reasons stated in the opinion. (Brown v. Rouse, 93 Cal. 287.)

When the case went back to the superior court the plaintiff amended his complaint, by inserting therein the averments “that on the eighteenth day of November, 1887, plaintiff above named loaned to said Charlotte Rouse, in United States gold coin, the sum of $1,200,” which she promised to repay, but had not repaid. The complaint otherwise remained as it had been. . The court found, as before, that the power of attorney gave the husband of the said Charlotte no power to make said note and mortgage, and that plaintiff was not entitled to be subrogated to the rights of said Davis. It found, however, that on November 18, 1887, said G. M. Rouse, assuming to act for the said Charlotte, borrowed from plaintiff $1,198, and gave him the said note for $1,200, and executed said mortgage, and that said Charlotte ratified and confirmed said loan by causing two installments of interest to be paid thereon. It was also found that of the money borrowed by G. M. Rouse from plaintiff, $481.65 were paid in satisfaction of said prior mortgage to said Davis. Upon these findings a personal judgment is entered against said defendant, Charlotte, for the amount of said loan with interest, amounting to $1,510.68. From this judgment, and from an order denying a new trial, the said defendant, Charlotte D. Rouse, appeals. A motion was submitted here to dismiss the appeal on account of alleged insufficiency of the undertaking on appeal, which motion is denied.