Prouty v. Devin

HENSHAW, J. Plaintiff, Prouty, was tbe owner of a mortgage executed by tbe defendant Mrs. L. A. Devin. He brought bis action seeking a decree establishing bis mortgage as a lien upon tbe property prior to that of a mortgage executed by Mrs. Devin and her husband to defendant Bates, which last mortgage was later in execution, but prior in recordation.

The undisputed facts are, that Mrs. Devin purchased the property upon which the mortgages were given, paying therefor eight thousand dollars, five thousand dollars of which was lent to her by defendant Bates, who is her father. For the remainder of the purchase price, three thousand dollars, she executed a mortgage. Mrs. Devin afterward discounted the joint noté of herself and husband, indorsed by plaintiff, Prouty, at the [259]National Bant of D. 0. Mills, and with, the proceeds discharged the mortgage. When this note became due payment was demanded of the makers and of the indorser. Finally the bank placed the note in the hands of its attorney, and notified Prouty and the Devins that if it was not paid on or before Saturday, December 27, 1890, suit would be commenced against them. Mrs. Devin came to Sacramento for the purpose of raising money upon the property with which to pay the note due the bank. Prouty secured the three thousand dollars, and deposited it with Leonard & Son, real estate dealers, to be by them lent to Mrs. Devin upon the execution by her and her husband of a mortgage upon the premises. The mortgage and mortgage note were drawn up, and were awaiting execution at the office of Leonard & Son. Mrs. Devin was informed of the fact, and went in search of her husband to have him join with her in the execution of the instruments. She could not find him, and returned shortly before 3 o’clock in the afternoon to the office of the real estate dealers with this information. The bank demanded payment upon that day. She suggested that she should execute the note and mortgage,, and take the money and pay it over to the bank, and that her husband would call in upon Monday morning and join in the execution. This was acceded to, she executed the note and mortgage, the money was delivered to her, and by her in turn paid in extinguishment of her note at the bank. Early the following Monday morning Bates and his daughter, Mrs. Devin, with her husband, went to the office of an attorney at law, where the Devins executed to him a mortgage in the sum of five thousand dollars, which he immediately caused to be recorded, while in the office of Leonard & Son they were waiting for Mrs. Devin’s husband to call in and join in the execution of the note and mortgage as had been agreed upon.