Downing v. Le Du

Works, J.

This was an action by the respondent against the appellant and her husband to recover on a promissory note executed by them jointly, and to foreclose a mortgage on certain real estate given by them to secure payment of the same. The husband allowed judgment to be taken against him by default. The wife answered, denying the execution of both the note and *472 mortgage, and setting up a homestead in the property. There was judgment against her, and she appeals.

The bill of exceptions shows that she demanded a jury trial, which was denied her, and she excepted. This is assigned as error. The respondent contends that she waived a jury trial, and it is so recited in the findings. But there is nothing in the record showing such waiver, and the recital in the findings that there was a waiver cannot prevail against the showing in the bill of exceptions that she demanded a jury and it was denied. The respondent further contends that the case was a purely equitable one, and that therefore she was not entitled, as a matter of right, to a trial by jury. But was this a purely equitable case?

The defendant denied the execution of the note, and denied that she was indebted to the plaintiff upon it for any sum. These were not equitable issues. Standing alone they would have been triable in a court of law. Could the fact that the issues were joined with others of an equitable character deprive her of the right to a trial by jury upon those which were not equitable? The case of Societe Francaise. v. Selheimer, 57 Cal. 623 , does not reach the point. That case was one to foreclose a mortgage, but the party appealing was not a party to the note or mortgage, but was a subsequent purchaser of the mortgaged property, and as to her the issues were purely equitable. It was said in that case: “ Appellant demanded a submission of the issues raised by her answer to a jury, which was refused. Nothing is better settled in this state than that it is entirely within the discretion of the court to grant or refuse such a demand in an action in equity. And this proceeding, so far as ■it affects the appellant, is purely one in equity. She was made a defendant in order that her equity of redemption might be foreclosed, and for no other purpose.”

The other cases cited by the respondent are not in point, except that they support the well-settled rule that *473 in purely equitable cases a party cannot demand a jury as a matter of right. But this precise question was before the court of appeals of New York in a late case, in which the defendants pleaded part payment of the amount due. It was held in that case that the party was not entitled to a jury, the court saying: “This is an action for the foreclosure of two mortgages on real estate, and was triable by the court. The defendant was not entitled as matter of right to a trial by jury. Although a sale of the mortgaged premises might result in a deficiency for which a money judgment could be docketed against the defendant liable for such deficiency, such a judgment was not the sole object of the action, but was an incident of the equitable relief sought. It might not even become necessary, as the mortgaged premises might bring a sufficient sum to pay the mortgaged debt, and the circumstance, that in the contingency of the premises proving insufficient, a judgment for the deficiency might result, did not entitle the defendant to a jury trial.” (Carroll v. Daniel, 95 N. Y. 254 .)

We are of the same opinion, and hold that a jury trial was properly denied.

It is contended by the appellant that the findings of the court were not sustained by the evidence, but we think otherwise. One contention is, that no lien -was established, because there was no proof that the mortgage was recorded. But the action being against the mortgagor, this was not necessary. The execution of the mortgage created the lien. The recording of a mortgage is not necessary as between the parties to it. It is only necessary to give notice to third parties.

It is further contended that the mortgage was not properly acknowledged by the appellant. But the certificate of the officer shows the acknowledgment to have been in due form, and if it were conceded, as contended by the appellant, that the certificate was not conclusive, but only prima jade evidence of a proper acknowledg *474 ment, we think it is corroborated by the parol testimony; but if it were not, it was sufficient to uphold the finding. It is claimed, also, that it was not shown that there was any consideration moving to the appellant for the note and mortgage. This was not necessary. The note imported a consideration, and no such proof was necessary.

Judgment and order affirmed.

Paterson, J., and Fox, J., concurred.