Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
J. M. Frame and R. Gilray, for Appellant.
C. E. Robins and J. A. Callahan, for Respondents.
By the Court, Norcross, C. J.:
This is a suit in foreclosure of a mortgage upon certain real property in the town of Winnemucca. From a judgment in favor of the defendant E. J. Lupin, the plaintiff has appealed.
From the pleadings and evidence in the case it appears that on the 16th day of March, 1909, at San Francisco, State of California, one James Goodwin, named as a defendant in the complaint, gave his promissory note to one Louis Goldstone, a resident of said city and state, for the sum of $175, payable with interest sixty days after date. At the same place and date the said Goodwin gave to said Goldstone a mortgage upon certain lots
belonging to Goodwin in the town of Winnemucca as security for the payment of said note. The note and mortgage were signed by Goodwin, and the execution of the mortgage was acknowledged as of even date before a notary public in and for the city and county of San Francisco. The mortgage was duly recorded at the request of said Goldstone by the county recorder of Humboldt County in the records of said county on the 24th day of March, 1909. It is alleged in the complaint and shown by the evidence that on the 4th day of March, 1910, the said Louis Goldstone, for a valuable consideration, assigned and transferred the said note and mortgage to the plaintiff and appellant, F. E. Seeley.
It appears from the pleadings and evidence that on the 19th day of March, 1909, three days subsequent to the execution of the mortgage, and five days before the recording thereof, the defendant J. W. Ferguson instituted a suit in the justice's court in the town of Winnemucca against the said James Goodwin, and attached the property of the defendant Goodwin described in the mortgage. Having recovered judgment in the attachment suit, the property attached was sold by the constable in satisfaction of the judgment, purchased by the said Ferguson at the constable's sale, and a constable's deed granted to said Ferguson on the 26th day of November, 1909. On the 27th day of May, 1909, the said Goodwin deeded the property to the defendant A. L. Wagner. On the 10th day of February, 1911, the said J. W. Ferguson deeded the property to the defendant J. E. Kendall. On the 25th day March, 1912, the defendant Kendall deeded the property to the respondent Lupin.
In addition to denying, on information and belief, the making or execution of the note or mortgage by Goodwin, the answer of defendant Lupin set up the following affirmative defenses:
(a) That the note and mortgage were void because made, executed, and delivered at a time when the said Goodwin was entirely irresponsible and incapable of
entering into a valid contract by reason of drunkenness.
(b) That, the property having been attached prior to the recording of the mortgage and subsequently sold by the constable in the attachment suit, the rights of the plaintiff were subordinate to the rights of the defendant Lupin.
The case was tried to the court with the aid of a jury, to which were referred two questions, which, together with the answers returned, read as follows:
Question No. 1: At the time the note and mortgage here in question were given by James Goodwin to Louis Goldstone was James Goodwin so intoxicated as to deprive him of his reason and understanding to the extent that he did not know the effect of those instruments or the nature of the transaction? Answer: Yes.
Question No. 2: On March 19, 1909, at the time Ferguson's attachment was levied on the lots described in the complaint, had Ferguson any knowledge that the note and mortgage in question were in existence? Answer: No.
1. Preliminary to a consideration of the questions presented upon the merits of the appeal a motion to dismiss the appeal should be disposed of. The defendants Wagner, Ferguson, and Kendall were not made parties to the appeal by service upon them of the notice of appeal. It is contended by counsel for respondent that they are necessary parties to the appeal. We think this contention is without merit. The defendants Wagner and Ferguson failed to answer, and their default was duly entered. The judgment shows that, as against the defendant Goodwin and his administrator (Goodwin having died subsequent to the institution of the suit and prior to the trial), an order of dismissal from the case was entered without objection prior to the trial. Wagner's rights under his deed from Goodwin were cut off by ...