Kuchenbeiser
California Title Insurance & Trust Co. v. Kuchenbeiser
Opinion
Lead Opinion
Kerrigan, J.
This is an action brought to foreclose a mortgage which was given to secure the payment of a promissory note.
The appeal is from the judgment in favor of the defendants taken within sixty days after the entry of the same.
Without any actual notice of the assignment of the note and mortgage, the defendants—the mortgagors—paid the Pacific Coast Savings Society—the mortgagee—the amount due on the note. With the exception of a small payment not questioned all the payments on account of the note and mortgage were made -after the assignment thereof to the plaintiff was recorded. It must therefore be held that the defendants had constructive notice of the assignment, and that, pnless the mortgagee was the authorized agent of the assignee for the collection of the money due on the note payment to the mortgagee would not discharge the liability on the note, unless it also appeared from the record that the mortgagee was in possession of the note and mortgage at the time the payments were made. (Civ. Code, see. 2935; Rodgers v. Peckham, 120 Cal. 238 , [ 52 Pac. 483 ].)
To save the case from the application of the doctrine of the ease just cited, the defendants took the position in the…
Addendum
Kerrigan, J.
On petition for a rehearing by plaintiff and appellant, it is urgently insisted that the items of evidence set out in the opinion of this court filed herein are not legally sufficient to sustain the findings of the trial court that the Pacific Coast Savings Society was the duly appointed agent of the plaintiff to collect the sums due on the note and mortgage sued upon.
Upon the hearing of this case in this court no argument, either oral or written, was made by the respondents’ attorneys, nor have they filed any in reply to the petition for a rehearing, so that, in a ease of apparently much importance to the respondents, we have been furnished no assistance by their counsel.
However, we have re-examined the record, and adhere to the views expressed in our opinion affirming the judgment.
We are satisfied that there is sufficient competent evidence in the record, or evidence received without objection, to warrant the conclusion that the Pacific Coast Savings Society was the duly appointed agent of the plaintiff to collect the sums of money here sought to be recovered. The very deed of trust, by the terms of which the assignment of the mortgage was made to plaintiff, provided that…