Klauber v. Vigneron

BELCHER, C. The material facts of this case are as follows : On December 16, 1887, the defendant George Vigneron executed to John A. Watson his promissory note for $300, and a mortgage to secure its payment on certain real property which he then owned. This note and mortgage were subsequently assigned to the plaintiffs. On January 26, 1888, Vigneron executed to the plaintiffs his promissory note for $700, due one year after date, and a mortgage to secure its payment on the same real property. On July 16, 1888, Vigneron, for the expressed consideration of one dollar executed, acknowledged, and delivered to Joanna Ford a deed conveying to her the mortgaged property, which deed was duly filed [796]for record on October 1, 1888, and was thereafter duly recorded. On July 17, 1888, Vigneron and Joanna Ford were married, and have ever since been husband and wife. On May 7, 1889, Vigneron executed to the plaintiffs his promissory note for $1,200, due six months after date, and a mortgage to secure its payment on the same real property mortgaged and conveyed as before stated; and on the same day the plaintiffs marked “paid” their $700 note, and delivered it to the maker, and also satisfied of record the mortgage given to secure its payment. On January 1, 1890, Vigneron and his wife Joanna, executed to C. H. Hill their promissory note for $3,500, due one year after date, and a mortgage to secure its payment on the same real property. Bach of the before-mentioned mortgages was duly recorded on the day or the day after its date. On June 27, 1890, the plaintiffs commenced this action to foreclose their $300 and $1,200 mortgages; and Vigneron, Mrs. Vigneron and Hill were made parties defendant. The complaint, among other things, alleged that the $1,200 mortgage “was given in lieu of, and substitution of, and in renewal of” the $700 mortgage which had been satisfied, and that neither of said mortgages had been paid; and that Mrs. Vigneron claimed an interest in the mortgaged property by virtue of the conveyance to her of July 16, 1888, but that the said deed was accepted by the grantee “with full knowledge of the existence of said debt, and of its nonpayment,” and her interest or claim was subsequent to the lien of the plaintiffs’ mortgage. And the prayer was that plaintiffs have judgment for the amounts due for principal and interest on the $300 and $1,200 notes, together with attorneys’ fees and costs; that the deed from George Vigneron to Joanna Ford be ordered delivered up, and canceled, and that plaintiffs be subrogated to the rights of the payees of the $700 note; that the mortgaged land be decreed to be subject to and sold under the $1,200 mortgage, and that the proceeds of the sale be applied in payment of the amount due the plaintiffs; that the defendants, and all persons claiming under them, be barred and foreclosed of all rights and claims in and to the said premises, and every part thereof; and that the plaintiffs have judgment and execution against George Vigneron for any deficiency, etc. George Vigneron failed to answer, and judgment was rendered against