[Syllabus Material] [Syllabus Material] [Syllabus Material]          Department One

         Rehearing (Denied, Granted) 55 Cal. 81 at 86.

         Appeal from a judgment for the plaintiff in the Eighteenth District Court, County of San Bernardino. McNealy, J.

         Action for the foreclosure of a mortgage for the sum of $ 3,000, executed May 21st, 1874, by Henry M. Willis to H. L. Drew, and by the latter assigned to the plaintiff. The complaint alleges (besides the usual allegations) that the defendant, Amelia Willis, claims that prior to this mortgage, (to wit, March 20th, 1874) Henry M. Willis had made his note and a mortgage on the same land to her, to secure the repayment of money received by him as her guardian, and appropriated to his own use; but the complaint alleges that the said note and mortgage were never accepted on behalf of said Amelia (who was then a minor seven years old) by any court, tribunal, or person, and that the actions of the said Henry M. Willis as her guardian were not, in that or any other respect, ever ratified by any person, court, or tribunal; and that thereafter, and before any acceptance thereof, the said Henry M. Willis canceled the said mortgage of record. The complaint further alleges that, prior to both of said mortgages, another mortgage upon the same land had been executed by Willis to one Hubbell, upon which there was due at the date of the Drew mortgage about $ 2,400, and which was paid out of the money borrowed from Drew, under the agreement that the Drew mortgage should stand in the place of the Hubbell mortgage, and be a first lien upon the land.

         The answer of Amelia Willis sets up the mortgage executed to her by Henry M. Willis, and alleges that the same was duly recorded on the day of its execution, and has never been paid or satisfied, and claims that it constitutes a prior claim to the mortgage of the plaintiff. It also denies the alleged agreement between Henry M. Willis and Drew with reference to the Hubbell mortgage.

         The material facts of the case, as found by the Court, are as follows:

         On the 27th of May, 1871, one Edwin A. Willis, (brother of Henry M.) died, and by his will bequeathed to his niece, Amelia, the proceeds of certain land, which he directed should be sold by his executor. The will further directed that out of the proceeds the executor should (in a certain contingency) pay off a certain mortgage on the farm of his brother Henry (the same land covered by the mortgages aforesaid); and that in case this was done, the executor should take a mortgage from his said brother on his farm, for the benefit of the said Amelia, for the money so paid. The will appointed one N. J. Pishon, as executor and as guardian of the said Amelia, and authorized and empowered him to appoint any other suitable person, in his place, as such executor and guardian. The will was duly probated, and Pishon qualified as executor and guardian, but afterward resigned, and appointed as his successor Henry M. Willis, who entered upon the discharge of his duties as such guardian and executor, and continued to act as such until the date of the trial; but without qualifying or receiving letters.

         Afterward, Pishon and Henry M. Willis sold the land referred to in the bequest, and the purchase-money, amounting to the sum of $ 3,170, was paid to Willis, and was by him appropriated to his own use; and to secure the repayment of this money, he executed to the defendant, Amelia Willis, the note and mortgage referred to in the pleadings: the latter was duly recorded on the day of the execution.

         Afterward, to wit, on the 26th day of April, 1875, Henry M. Willis, acting as guardian of the defendant Amelia, caused to be entered of record in the Recorder's office a satisfaction of the said mortgage; but in fact the note secured by the mortgage was never paid.

         On May 1st, 1875, Henry M. Willis borrowed of the plaintiff's assignor, Drew, $ 3,000, and to secure the same executed the mortgage sued upon; and a portion of the money thus borrowed, (viz., $ 1,800) was used to satisfy the Hubbell mortgage, but there was no agreement or understanding between the parties to the mortgage, except that the Hubbell mortgage should be paid out of the proceeds of the loan.

         Amelia Willis, at the time of the execution of the mortgage to her, was a minor, seven years old, living with and under the control of her father, Henry M. Willis; and in executing the note and mortgage, Henry M. Willis acted wholly under the will, and without any agreement with Amelia, or with any person, court, or tribunal in her behalf; and the note and mortgage was in the possession of Henry M. Willis from the time they were executed until the commencement of the action; and were never delivered to the said Amelia, or to any person, court, or tribunal for her, except so far as causing said mortgage to be recorded was a delivery.

         COUNSEL:

         The Court finds that it, the mortgage to respondent, was never delivered, except so far as causing it to be recorded was a delivery. This is equivalent to a finding that there was no delivery. (Barr v. Shroeder , 32 Cal. 616; Parmelee v. Simpson, 5 Wall. 81; Younge v. Guilbeau , 3 id. 636; Hawkes v. Pike , 105 Mass. 560; Maynard v. Maynard , 10 id. 456; Jackson v. Phipps, 12 Johns. 418; Woodbury v. Fisher , 20 Ind. 388; 3 Wash. on R. P. 254, 264-5; Lessee of Mitchell v. Ryan, 3 Ohio St. 387; Hulich v. Scovil , 9 Ill. 159; Bennett v. Waller , 23 id. 97.) The Court found as an ultimate fact that the guardian, acting as such, caused the mortgage of respondent to be discharged of record. It makes no difference whether the mortgage was in fact paid or not: on this point the record is conclusive.

         The plaintiff was entitled to be subrogated to the rights of Hubbell under the first mortgage. (Carr v. Caldwell , 10 Cal. 384; Swift v. Kraemer , 13 id. 530; Dillon v. Byrne , 5 id. 456; Birrell v. Schie , 9 id. 104; Himmelmann v. Schmidt , 23 id. 117; Bouvier's L. D., title " Subrogation." )