Hale

Plaintiff brought this action to foreclose a mortgage. Judgment was entered for the defendant and plaintiff appeals. The defendant and respondent Waldteufel was the owner of the lands and premises in Mendocino County, described in the mortgage sought to be foreclosed. He agreed with the defendant and respondent Mrs. Pendergrast that he would sell and convey the said lands and premises to her, for the purchase price of ten thousand dollars, payable two thousand dollars in cash, and eight thousand dollars according to the terms of the promissory note and mortgage sued on in this action, and, as part of the same transaction, Waldteufel agreed with defendant Pendergrast that he would repurchase the said premises from her, for the sum of ten thousand dollars, at any time within one year from the date of the consummation of her purchase, if she should elect to so require. Mrs. Pendergrast agreed with Waldteufel to purchase said premises from him on said terms, and on the twenty-fifth day of August, 1916, Waldteufel conveyed said premises to her by a grant, bargain, and sale deed and she paid him therefor the sum of two thousand dollars, and made, executed, and delivered to him the…

Plaintiff brought this action to foreclose a mortgage. Judgment was entered for the defendant and plaintiff appeals.

The defendant and respondent Waldteufel was the owner of the lands and premises in Hendocino County, described in the mortgage sought to be foreclosed. He agreed with the defendant and respondent Hrs. Pendergrast that he would sell and convey the said lands and premises to her, for the purchase price of ten thousand dollars, payable two thousand dollars in cash, and eight thousand dollars according to the terms of the promissory note and mortgage sued on in this action, and, as part of the same transaction, Waldteufel agreed with defendant Pendergrast that he would repurchase the said premises from her, for the sum of ten thousand dollars, at any time within one year from the date of the consummation of her purchase, if she should elect to so require.

Hrs. Pendergrast agreed with Waldteufel to purchase said premises from him on said terms, and on the twenty-fifth day of August, 1916, Waldteufel conveyed said premises to her by a grant, bargain, and sale deed and she paid him therefor the sum of two thousand dollars, and made, executed, and delivered to him the…

application for a hearing in this court after decision by the district court of appeal of the first appellate district, division one.

The opinion of the lower court discusses the recordability of the notice by the defendant Pendergrast. In this portion of the opinion we are not ready to concur without further consideration. It is immaterial, however, whether it was recordable or not. In any event the contract of repurchase between the defendant Waldteufel and Mrs. Pendergrast, if the latter chose to avail herself of it, would have been a good defense to an action by Waldteufel to foreclose the mortgage. Being a good defense against him, it would be a good defense against his assignee, the plaintiff, since the mortgage note was not negotiable under the law of this state at the time of the transactions here involved. The result, so far as the defendant Pendergrast is concerned, is that upon the facts found by the lower court the plaintiff is entitled to a judgment against her *111 foreclosing any interest of hers in the mortgaged property, but not to a deficiency judgment. As to the defendant Waldteufel, he warranted to the plaintiff the validity of the mortgage against the defense…