D'Oyly v. Capp

Citations

• 99 Cal. 153
• 33 P. 736
• 1893 Cal. LEXIS 627

Syllabus

<p>JÍORT0AGE TO SECURE ADVANCES — SUBSEQUENT NOTES FOB PbIOR INDEBTEDNESS —Ihmatebial Vabianoe—Pbioeitx of Liens Where a mortgage was made by its terms to secure a note of two thousand five hundred dollars, and such additional sums and interest thereon as might be loaned by the mortgagee to the mortgagor before the discharge of the mortgage, each additional loan to be evidenced by the promissory note of the mortgagor, and subsequently two other notes were given, aggregating in ali the sum of eleven thousand dollars, which other notes recited that they were given to evidence advances made in accordance with the mortgage, the fact that the whole eleven thousand dollars was a subsisting indebtedness when the mortgage was executed does not constitute a material variance, or make the mortgage as to the two latter notes subject to a judgment lien docketed after their execution.</p> <p>Jfo.—Unpbue Recitals of Consideration—Ascertainment of Extent of Encumbrance.—Although a mortgage ought to state the true consideration for ■ which it was given, yet untrue recitals, or the omission to disclose the real nature of the transaction ou the face of the mortgage, will not make it invalid, unless some one has been prejudiced by the misrepresentation, and where, uofcwithstmding such recitals, the mortgage gires such information that a junior lienholder may by Inspection of the record, and the exercise of ordinary diligence, ascertain with certainty the extent of the encumbrance, and the transaction is otherwise fair, there is nothing inequitable in enforcing it against him.</p>