Fox

This is an action to foreclose a mortgage, and the only question in the case is as to which of two mortgages on the same land has priority.

The facts are in substance as follows: On October 8, 1893, the defendant, W. H. Fox, executed to the defendant, Stella Payne Meads, his promissory note for seven hundred and fifty dollars, and a mortgage to secure payment of the same on one hundred and sixty acres of land then owned by him. This mortgage was duly recorded November 4, 189.3.

On October 10, 1893, Fox and his wife, Cynthia E. Fox, executed to the Farmers’ Union of San Miguel their promissory note for four hundred and eighty dollars and twenty cents, and a mortgage to secure pajunent thereof on the same one hundred and sixty acres of land. This mortgage was duly recorded on the twelfth day of the same month. Subsequently, the Farmers’ Union indorsed and assigned said note and mortgage to the First National Bank of San Luis Obispo, and the latter assigned the same to the plaintiff. It does not, however, appear from the complaint or findings when these assignments were made, or that either of them was ever recorded, or that any consideration was paid therefor.

The plaintiff…