Ambrose v. Barrett

Citations

• 121 Cal. 297
• 53 P. 805
• 1898 Cal. LEXIS 898

Syllabus

<p>Mortgage—Payment to Agent—Satisfaction—Attachment by Mortgagor. Where at the request of the mortgagors, residing in the state of New York, the note and mortgage when due, and a release of the mortgage, were sent by express, with instructions from the mortgagee to the express agent, at their place of residence, to collect the amount of the mortgage and the expense of collection, and not to give up the papers until the money was paid, the payment to such agent of the required amount of money, and the delivery up of the papers by him, operated as a payment in full to the mortgagee and .a satisfaction of the mortgage, notwithstanding the money paid to the agent was immediately thereafter attached at suit of one of the mortgagors against the mortgagee, and was afterward applied in payment of the demand sued upon.</p> <p>Id.—Attempted Foreclosure—Findings—Payment—Collusion—Right of Attachment.—Upon the attempted foreclosure of such mortgage, after payment thereof to the plaintiff’s agent, a finding that it was paid and satisfied will not he disturbed upon appeal, upon the alleged ground that the payment and attachment by the mortgagor were collusive and fraudulent, where there is no evidence of such collusion and fraud, and the findings are the other way, and there is nothing in the record to indicate that either the sheriff or the express agent were parties to any trick or fraudulent scheme, nor to show that the mortgagor did not have a cause of action upon which he was entitled to attach the money of the mortgagee.</p> <p>Id.—Plan of Mobtgagob—Negligence of Mortgagee.—If the mortgagor adopted the plan of having the money paid to the mortgagee in the state of New York for the particular purpose of giving the sheriff an opportunity to levy upon it in a contemplated suit by him against the mortgagee, that fact would not constitute fraud and would not operate to set aside and nullify the payment of the money to the mortgagee’s agent; and where the mortgagee neglected to