Heron

This is an appeal from the judgment. David Heron executed to the plaintiff hank his promissory note for nine thousand dollars, secured hy mortgage' upon realty. Afterward he conveyed the land affected by the mortgage to Sophia Heron, his wife. The bank brought this action to foreclose the mortgage. By verified complaint it pleaded its execution, acknowledgment, and certification so as to entitle it to recordation, and alleged that it was forthwith recorded in the records of Yolo county. The verified answer and cross-complaint of defendants admitted all of these allegations, but averred payment by defendant Sophia Heron.

At the trial it appeared that the certificate of recordation on its face was regular in form, and that the mortgage had been regularly recorded. But notwithstanding that no issue was joined upon the question of the legality and sufficiency of the acknowledgment, the cashier of plaintiff while on the witness stand was permitted to testify that the acknowledgment was taken before bfm, and that at the time he took it he was a stockholder of the bank, holding ten shares out of nine thousand six hundred and twenty-one. Hpon this showing defendants’ attorneys moved to…