Hines v. Ward

Citations

• 121 Cal. 115
• 53 P. 427
• 1898 Cal. LEXIS 860

Syllabus

<p>Mortgage — Cancellation — Deed from Mobtgagob—Merger—Judgment Lien—Equity.—Where an insolvent mortgagor deeded the premises to the mortgagee in satisfaction of the mortgage, which was canceled by the mortgagee in ignorance of the fact that a judgment had been rendered and docketed against the mortgagor, and in reliance upon the representation of the mortgagor that there was no other lien upon the property, equity will interpose to prevent a merger of the discharged mortgage in the legal title, and the preferring of the lien of the subsequent judgment thereto; and the mortgage, though discharged, will still be upheld and enforced in equity in the interest of the mortgagee for the purpose of security against the intervening lien.</p> <p>Id.—Presumption Against Merger—Intention of Mortgagee.—It is presumed, as matter of law, that the mortgagee must have intended to keep his mortgage title on foot as a protection against any intervening lien or title, notwithstanding the discharge of the mortgage in ignorance thereof or through inadvertence, and notwithstanding the real intention of the mortgagee to extinguish the mortgage and the notes secured thereby.</p> <p>Id.—Action to Restrain Sale—Parties—Amendment—Enforcement of Mortgage—Election of Remedy.—The rule is that a party having a right of election between inconsistent remedies cannot pursue both, and, after having elected to pursue one, is debarred and estopped from pursuing another inconsistent remedy, does not apply where an action was brought in equity by the holder of a discharged mortgage, to whom the mortgagor had conveyed the legal title, to restrain a sale under an intervening judgment lien and for general relief, and an amendment was allowed to bring in the mortgagor as a party, and to seek a reinstatement, and enforcement of the mortgage lien as against the judgment lien. The only obstacle under the original complaint to the relief awarded under the amended complaint xvas the failure to make the mortgagor