Giselman v. Starr
Before: Henshaw
Synopsis
Mortgage—Power of Trustee to Assign.—Where a note given to a trustee was made payable to him as trustee, “or order,” and a mortgage was also expressly made to him as trustee, “ his assigns and successors, ” the trustee has, by necessary implication, the power to sell or assign the note and mortgage; and, where no evidence is offered to overcome the presumption that the assignee took the note and mortgage for value, the transfer to him is valid and not in violation of the trust. \\
Id.—Intended Gift—Delivery.—The fact that a mortgagee intended the note and mortgage to pass by gift to an incompetent daughter for whom the father has obtained letters of guardianship, and that the same have been entered in the inventory of her estate as the property of the incompetent, is not sufficient of itself to establish a gift, there being no delivery or assignment of the note and mortgage to the daughter, and no indorsement of the note payable to his order by the mortgagee.
Id.—Read Party in Interest—Statutory Right of Defendant.—The defendant has a statutory right to have a cause of action against him prosecuted by the real person in interest; but where the plaintiff shows such a title in a note and mortgage sued upon as that a judgment upon it satisfied by defendant will protect him from future annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, there is an end of the defendant’s concern and of his right of objection; and, so far as he is interested, the action is being prosecuted in the name of the real party in interest.
Id.—Defense Against Read Owner.—Where prima facie legal title is shown in the plaintiff, such as would protect the defendant if judgment were obtained upon it, if the defendant claims another to be the real owner he must support his right to make that claim by showing that he has some equity or defense against the real owner which he cannot maintain against the prima facie legal owner.
Id.—Correction of Description of Mortgage.—The court may properly reform a mortgage as to the description of the land, where there is sufficient evidence to support the finding of a mistake, and to justify the decree of correction.
Id.—Findings.—Findings need not be made of facts admitted by the plead, ings, or sufficiently covered by the findings actually made.
Henshaw, J. The appeals are from the judgment and from an order denying a new trial.
Action by plaintiffs as executors of the last will of S. C. Hastings, deceased, to reform, and as reformed to foreclose, a mortgage executed by defendant.
Starr executed the note and mortgage in suit to William Giselman, trustee, in payment and cancellation of an existing note, also secured by mortgage, made by him to S. 0. Hastings. A few days thereafter Giselman indorsed the note, “ Pay to the order of S. C. Hastings, without recourse, William Giselman, trustee,” and delivered it to Hastings. At the same time he executed, as trustee, an assignment to Hastings of the mortgage. These papers, upon the death of Hastings, coming into the hands of the executors, of whom Giselman is one, this action was in due time commenced.
The defendant meets it by answer and cross-complaint, whereby he claims that he executed the note and [655]mortgage to Giselman, as trustee, for the use and benefit of the daughters of said Hastings; that at the time of the assignment to Hastings he knew this fact, and, so. knowing, took the note and mortgage without consideration; that thereafter Ella Hastings, daughter of S. 0. Hastings, acquired by gift all of the interest of S. G. Hastiugs in the note and mortgage, and that the action is not prosecuted by the real parties in interest. The named beneficiaries of the trust and the widow of S. 0. Hastings are interpleaded as having or claiming some interest in the mortgage and note, and are brought in under averments that without a determination of their rights defendant cannot tell to whom to pay the amount found due, nor with safety redeem in the event of a sale.
Plaintiff’s answer to the cross-complaint does not, in terms, deny that the note and mortgage were executed to Giselman as trustee for the use and benefit of the named children of S. 0. Hastings, but does deny that they are or ever have been the property of the children or any of them. Upon all other material averments of the cross-complaint it joins issue.
The children and others interpleaded by defendant, one and all filed disclaimers, and in this state of the pleadings the trial was had.
The death of Hastings and their appointment as executors admitted, plaintiffs introduced the note with its indorsement, the mortgage and the assignment of it, and rested upon this direct evidence and the presumptions arising from it. (Code Civ. Proc., sec. 1963, subds. 8,11, 21, 22; Civ. Code, secs. 1614, 3104, 3122-24.)
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