Lee v. Murphy
Opinion
Opinion on Rehearing
Beatty, J.
Confessedly, this is a hard case. The defendant, upon a technical objection to the record of a mortgage, defeats a just claim. Plaintiff therefore urges in her petition for a rehearing that the court should have noticed and sustained her technical objection to the sufficiency of the answer to raise an issue as to the recording of the mortgage. It may be that the denial in the answer is insufficient in this particular, but the findings of the superior court, and the statement of the case, show that the trial was conducted upon the theory that the recording of the mortgage was in issue; and, as we have frequently held, it is too late to raise such an objection for the first time in this court. The objection to the statement upon the ground . that it contains no specifications of particulars in which the findings are unsupported by the evidence is immaterial, even if well founded, because the findings of the court establish that the mortgage was not recorded. A rehearing must be denied.
Lead Opinion
Chipman, J.
On March 11, 1892, the defendant, M. E. Murphy, executed a promissory note for fourteen hundred dollars to W. H. Lee, plaintiff’s testator (and husband), and on the-same day he executed a mortgage on the premises described in the complaint to said Lee, to secure the payment of said note. The mortgage was acknowledged by Murphy before Lee, the mortgagee, and the name of the mortgagee given in the mortgage and the name of the notary were identical.
The consideration of this note was money paid by said Lee to one A. K. Boutwell, at the request of said Murphy, as the purchase price of the land described in the mortgage. The deed was made direct from Boutwell to Murphy, and as a part of the transaction Murphy mortgaged the premises to Lee as security for the purchase price paid to Boutwell.
The deed bore the same date as the mortgage, and was recorded March 12, 1892, twenty-three minutes past nine o’clock A. M. The mortgage was recorded the same day seven minutes-later.
On the twenty-fourth day of September, 1895, the defendant, ¡Rachel Murphy, filed in the office of the county recorder of Sutter county a homestead on the mortgaged premises.