Public-domain · open source
OpenJurist

6 Cal. 478

Phelan v. Olney

California Supreme Court

Decided July 1, 1856

California Supreme Court · decided 1856-07-01

The.plaintiff filed his bill of foreclosure against J. N. Olney, J. B. Roberts, J. E. Brown, and Rebecca F. Gregory. The bill sets. forth the following averments : That on September 1st, 1853, the defendant, Olney, made two promissory notes of even tenor and date, to W. C. Jewett, for $2,000 each, payable in one year, with interest at one per cent, per month, and to secure the same, executed a mortgage on certain property in San Francisco.

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

How this case has been cited

Cited by 8 later decisions — most recently July 1964

7 state decisions

40185618601870188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Mr. Justice Terry delivered the opinion of the Court.

¶1Mr. Chief Justice Murray concurred.

¶2*483In Ord v. McKee, and Bennett v. Taylor, decided Oct. Term, 1855, we held that a mortgage is the incident of a debt, and that the endorsement of a promissory note secured by mortgage, carried with it the security without a formal assignment of the mortgage.

¶3The endorsement and delivery by Jewett to Brigham of one of the notes secured by Gluey’s mortgage, carried with it a pro rata portion of the security. Keyes v. Wood, 21 Vt., 339; 9 Cowen, 751, and 17 Sergt. & Rawle, 404.

¶4Roberts, the purchaser of the second note, and the assignee of the mortgage took with notice of the plaintiff’s equity; as he was informed by the deed itself that it was given as security for two notes of equal amount, neither of which was due.

¶5The holders of the notes stood in the same relation to the mortgaged premises, until Roberts entered a discharge of the mortgage, and accepted a different security. This discharge, though void as to the plaintiff, was valid as to Roberts, and divested any lien which he had by virtue of said mortgage.

¶6Judgment affirmed with costs.

/6/cal/478 · .json · Public domain