Under our statute and decisions it is clear that a mortgage is never considered to be a deed conveying an interest in real estate, either before or after condition broken. (Hitt. Dig., Art. 5199; Goodenow v. Ewer, 16 Cal. 467; Dutton v. Warschaur, 21 Cal. 621.)
JUDGES: Rhodes, J. Neither Mr. Chief Justice Wallace nor Mr. Justice Crockett expressed an opinion.
OPINION
RHODES, Judge
It is admitted by the pleadings, that the promissory note in suit was assigned by the payee to the plaintiffs. That fact not being in issue, no question arises as to whether the assignment was made in such form as to pass the interest of a married woman. Upon the issue, as to whether the plaintiffs took the note with notice of the facts relating to its delivery to the payee, the evidence was conflicting, and the verdict therefore will not be disturbed on the ground, that on that issue it is contrary to the evidence.
The agreement executed by Sainsevaine and Jose C. Carrillo to the purchasers of the rancho, acknowledges the receipt of thirteen thousand dollars, gold coin, " for and on account of the sale of the rancho," and does not mention a promissory note; but if it can be construed as referring to the note in suit, because it was proven that the note constituted a portion of the purchase money for the rancho, still the verdict must be sustained. That the term " deed" will in its largest sense include a mortgage there can be no doubt; but it is manifest from the context, that the term was used in that instrument in a more limited sense. The deed referred to, as of even date with the instrument, was executed to the purchasers of the rancho, and is mentioned " as the deed conveying said rancho to said parties; " and a deed against which said purchasers desired to protect themselves, is described as " another deed conveying the interest" of the same grantor in the rancho. A proper construction of the instrument renders it clear that the parties used the term " deed" in both instances, as meaning an instrument in writing which purported to convey the title of Maria Merced Williams de Carrillo to the rancho. It was not shown that another deed of conveyance had been executed by her prior to that which bore even date with that instrument; nor was it shown that the deed, to the purchasers mentioned in that instrument, failed to convey to them the title to the rancho.
Judgment and order affirmed with ten per cent damages.