Ord v. McKee

Citations

• 5 Cal. 515

Syllabus

<p>The note sued on, payable to the plaintiff, although it describes him as agent of another, does not take away the right of the agent to sue in his own name at law.</p> <p>The question, whether the plaintiff had the right to go into equity, and foreclose the mortgage given to the principal to secure the note, depends upon the fact, whether he was really interested in the subject matter.</p> <p>A mortgage is a mere incident to the debt which it secures, and follows the transfer of the note with the full effect of a regular assignment.</p> <p>A copy of a mortgage is not admissible as evidence, where the absence of the original is not accounted for.</p> <p>It is the duty of a Court of Equity, when all the parties to a controversy are before it, to adjust the rights of all, and leave nothing open for future litigation, if it can be helped.</p> <p>A note was executed to 0., as the agent of M., and the mortgage to secure the note was made to M. 0., under a contract with M., was entitled to one-half of the note. Held, that 0. having a right to the note, had a right to foreclose the mortgage.</p> <p>0. is not entitled to a decree for the full amount of the note; but the’decree should order a foreclosure of the mortgage, and direct the money to be paid over to a Master, to be appointed for the purpose, to distribute it equally between 0. and M., and if the amount should be insufficient, to pay the amount found due, then the Court should render judgment for one-half of the deficiency in favor of each, severally.</p>