Storch

Action to foreclose a mortgage given to secure the payment of a promissory note of eight thousand dollars. The central question in the case is, whether the note had been paid and the mortgage discharged before the commencement of this action. The court so found, and that finding is attacked by appellant, on the ground of the insufficiency of- the evidence to justify it.

The evidence shows that one John Belz had possession of the note and mortgage by authority of plaintiff, who testifies as follows: “ Shortly before maturity I sent the note to the First National Bank of Los Angeles, California, for collection. I stated to them if it was not paid promptly, to turn it over to-John Belz, who would see to. the collection of it.” The note was indorsed by plaintiff generally or in blank, and was turned over by the bank to Belz. On December 22, 1889, Belz and defendant McCain negotiated for the exchange of said note and mortgage for an absolute conveyance to plaintiff by defendant McCain of an undivided one-fourth part of the mortgaged premises and a note for $1,485.35, secured by a mortgage on another fourth of said premises. Belz, in consideration of said absolute conveyance and…

I dissent. I think that the case was properly decided in the court below, and that the error, if any, in admitting certain evidence was not of sufficient importance to change the result.

I concur with Justice McFarland.