County Bank of San Luis Obispo v. Fox

Citations

• 119 Cal. 61
• 51 P. 11
• 1897 Cal. LEXIS 847

Syllabus

<p>Mortgages—Conflict and Priority—Prior Recordation of Second Mortgage-Actual Notice—Unprotected Transfer.—The prior recordation of a second mortgage does not give it priority over a first mortgage which is subsequently recorded, where the mortgagee named in the second mortgage had actual notice of the execution and existence of the prior note and mortgage when the second mortgage was executed, while such mortgage remains in the hands of the mortgagee, or of his assignee, who takes without consideration, or subsequently to the record of the first mortgage.</p> <p>Id,—Foreclosure — Conflicting Mortgages — Pleading—Protection of Bona Fide Assignee of Second Mortgage.—In a foreclosure suit, when there is a conflict as to priority of lien between an assignee of such second mortgage and the prior mortgagee, and it appears that the subsequent mortgagee, whose mortgage was first recorded, had actual notice of the prior mortgage, it devolves upon such assignee, . in order to claim protection as a tona fide, purchaser of the second mortgage for value, without notice of the prior mortgage, to plead and prove the facts essential to make him such tona fide purchaser, and to show that he took for value prior to the recordation of the first mortgage, and without actual notice thereof.</p> <p>Id.—Constructive Notice to Assignee.—Where the court finds that the second mortgagee had actual notice of the prior mortgage, and there is neither allegation nor finding that any consideration was paid for the assignment of the second mortgage, and it does not appear but that it may have been made after recordation of the first mortgage, the assignee of the second mortgage will be deemed chargeable with constructive notice of the prior mortgage, and a decree giving priority of lien to the first mortgage will be affirmed.</p>