First National Bank v. Dusy

Citations

• 110 Cal. 69
• 42 P. 476
• 1895 Cal. LEXIS 1019

Syllabus

<p>Foreclosure of Mortgage—Pledge — Collateral Security—Trust— Evidence—Harmless Ruling.—In an action to foreclose a mortgage ■ and a pledge of water stock, in which the complaint alleges the execution of a promissory note by the defendant to the plaintiff, payable on demand, with provision for a reasonable attorney’s fee in case of suit, and an assignment of shares of water stock as security therefor, and that as further security the defendant afterward executed and delivered to a third party a note and mortgage for a larger sum, which was assigned to the plaintiff, and it was sought to foreclose the mortgage so assigned, and the pledge of the water stock, for the amount only of the original note, and for a reasonable attorney’s fee, and the answer of the defendant denied that the mortgage was executed to secure the payment of the original note held by plaintiff, but alleged that it was executed in trust to the payee thereof to take up and deliver three notes of the defendant, aggregating the principal sum named in the mortgage, one of which was the note in suit, and that the trust was violated by the mortgagee, and the mortgage transferred to the plaintiff without the knowledge and consent of the defendant, in violation of said trust, the collateral note and mortgage are admissible in evidence under the issues tendered; and where the court found in favor of the plaintiff upon all of the issues, and foreclosed the mortgage for the amount of the original note and interest, the mortgagor could not be prejudiced by rulings upon the admission of evidence respecting the mortgage, and as to whether the mortgagee had failed to take up the notes as alleged by the defendant.</p> <p>Id. — Mistake in Findings and Judgment — Failure to Foreclose Pledge — Amendment — Jurisdiction. — In an action to foreclose a mortgage and a pledge of water stock, where neither the conclusions of law, nor the order for judgment, nor the judgment as entered make any disposition of the stock whic