San Jose Safe Deposit Bank of Savings v. Bank of Madera

BRITT, C. In this action, after trial, the court below rendered judgment whereby defendant Westfall, as sheriff of the county of Madera, was required to execute to plaintiff a deed óf certain land which had been sold by his predecessor in office in the course of judicial proceedings to foreclose a mortgage there-, on, and whereby also, among other directions in plaintiff’s favor, the Bank of Madera and other defendants were enjoined from asserting any title or interest in said land. Afterward the court granted a new trial and the plaintiff took this appeal. Among the facts in evidence, or admitted by the pleadings, it appeared that on March 4, 1893, defendant Charles Dworack owned said land and on that day mortgaged the same to one Boberts as se-r curity for a debt of three thousand dollars, and interest thereon, he owed to said Boberts. On January 10, 1894, said Charles Dworack made a second mortgage of the premises to his mother, [541]'the defendant, Mary Dworack, purporting to secure payment to her of the sum of eight thousand five hundred dollars, with interest, on or before January 10, 1896. August 4, 1894, said Charles made a deed in terms conveying said land to said Mary - and caused the same to be duly recorded; the court found that this deed was never delivered to the grantee or to any other person for her. December 12, 1894, the land was sold by the then • sheriff of the county, one Thurman, pursuant to a judgment obtained by Roberts in an action prosecuted by him against ■■ Charles and Mary Dworack to foreclose his said mortgage of ■ March 4, 1893; Roberts himself became the purchaser; this is the sale which the judgment in the present action directed said Westfall to consummate by issuing his deed to plaintiff. Pre- • vious to such sale said Bank of Madera recovered a personal judgement against Charles Dworack for the sum of fourteen hundred and ninety dollars, which was docketed and became a lien on the interest of said Charles in said land subordinate to the lien of Roberts’ mortgage. On February 18, 1895, Mary Dworack, claiming to be a qualified redemptioner as holder of said mortgage of January 10, 1894, paid to Westfall, who had succeeded Thurman in the office of sheriff, the sum necessary to redeem the land from the sale to Roberts, and Roberts accepted the same as paid for that purpose.

The money thus paid was borrowed from the plaintiff in this action; the court found that “for the purpose of effecting a redemption from the foreclosure sale of December 12, 1894, the plaintiff herein loaned and advanced to the defendant Mary Dworack the sum of three thousand seven hundred and fifty • dollars with the distinct understanding that said sum was to be used by her in effecting such redemption, and that after such redemption should be effected she would repay said sum to plaintiff, and interest,” etc.; it was also found, in effect, that in order to secure plaintiff for the money so advanced, the said Mary Dworack, on said February 18, 1895, executed to plaintiff “an assignment and transfer of all her right as redemptioner, or otherwise, by reason of the redemption that day made by her of the real property above described”; such assignment in terms authorized plaintiff to obtain from the sheriff a deed of the property.