Giselman v. Starr

Citations

• 106 Cal. 651
• 40 P. 8
• 1895 Cal. LEXIS 658

Syllabus

<p>Mortgage—Power of Trustee to Assign.—Where a note given to a trustee was made payable to him as trustee, “or order,” and a mortgage was also expressly made to him as trustee, “ his assigns and successors, ” the trustee has, by necessary implication, the power to sell or assign the note and mortgage; and, where no evidence is offered to overcome the presumption that the assignee took the note and mortgage for value, the transfer to him is valid and not in violation of the trust. \\</p> <p>Id.—Intended Gift—Delivery.—The fact that a mortgagee intended the note and mortgage to pass by gift to an incompetent daughter for whom the father has obtained letters of guardianship, and that the same have been entered in the inventory of her estate as the property of the incompetent, is not sufficient of itself to establish a gift, there being no delivery or assignment of the note and mortgage to the daughter, and no indorsement of the note payable to his order by the mortgagee.</p> <p>Id.—Read Party in Interest—Statutory Right of Defendant.—The defendant has a statutory right to have a cause of action against him prosecuted by the real person in interest; but where the plaintiff shows such a title in a note and mortgage sued upon as that a judgment upon it satisfied by defendant will protect him from future annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, there is an end of the defendant’s concern and of his right of objection; and, so far as he is interested, the action is being prosecuted in the name of the real party in interest.</p> <p>Id.—Defense Against Read Owner.—Where prima facie legal title is shown in the plaintiff, such as would protect the defendant if judgment were obtained upon it, if the defendant claims another to be the real owner he must support his right to make that claim by showing that he has some equity or defense against the real owner which he cannot maintain against the