Anglo-California Bank v. Eudey

• Decision Date: 25 May 1903
• Docket Number: 910
• Citation: 123 F. 39
• Parties: ANGLO-CALIFORNIAN BANK, Limited, v. EUDEY, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F. 39

ANGLO-CALIFORNIAN BANK, Limited, v. EUDEY, et al.

No. 910

United States Court of Appeals, Ninth Circuit.

May 25, 1903

Jesse W. Lilienthal, for plaintiff in error.

George W. Towle, Jr., for defendant in error.

In Error to the Circuit Court of the United States for the Northern District of California.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This action was commenced by Henry Eudey during his lifetime against the Anglo-Californian Bank, Limited, a corporation in one of the superior courts of the state, and thereafter removed, on its petition, to the Circuit Court of the United States, where it was decided in favor of the plaintiff on a motion for judgment on the pleadings, and is brought here by writ of error sued out by the defendant below.

The complaint alleges that on the 1st day of January, 1894, the Gover Mining Company was the sole owner of certain described mining property, which it mortgaged on or about the 1st day of May, 1894, to plaintiff in error, as security for moneys borrowed at different dates, aggregating $15,000, which mortgage was thereafter, and prior to July 1, 1894, recorded in Amador county, Cal., where the mortgaged property is situate. The complaint alleges that on the first Monday of March, 1895, and at a like date in the years 1896 and 1897 the bank then being the owner and holder of the mortgage, the assessor Amador county duly assessed the mortgage to the bank, and that thereafter the various statutory proceedings applicable to the assessment of the mortgage were had during each of the said years 1895, 1896, and 1897, including an entry in the assessment book of the county each of those years of the words, 'Sold to the state'; that on February 16, 1900, the plaintiff was the owner and holder of the record title to the mortgaged property, having prior thereto succeeded to all the right, title, and interest of the Gover Mining Company therein, which property was then subject to the lien of the state for the unpaid taxes assessed upon the mortgage, together with interest, percentages, and penalties, all of which then was the personal debt of the bank, and then due and payable by it to the state of California and county of Amador; that after the plaintiff became the owner of the mortgaged property, and before the 26th day of February, 1900, he requested the bank to pay the taxes, interest, percentages, and penalties to the state, which it refused to do, and that the plaintiff was thereafter compelled to pay and did pay the same and all thereof, to his damage; that the same was so paid by the plaintiff under and by reason of duress, and to the use and benefit of the bank, and in discharge of its personal debt to the state of California and the county of Amador. Judgment was asked for the amount so paid, together with interest, percentages, and costs.

The amendment to the defendant's answer is as follows:

'And for a further and separate answer and defense to each of the several causes of action in said complaint stated or alleged, defendant admits: That the mortgage in said complaint mentioned was executed by the Gover Mining Company, a corporation, and was accepted by defendant on, to wit, April 30, 1894, to secure the payment of the moneys as in said complaint alleged, and that defendant thereafter continued to be the sole owner of said mortgage until, to wit, the 24th day of March, 1898. That said mortgage was, during each of the years 1895, 1896, and 1897, duly assessed to defendant by the assessor of said Amador county. That defendant did not pay the taxes so assessed, or any part thereof. That upon due and regular proceedings had, the mortgage interest of defendant in said mortgaged property, to wit, the said 'Gover Mining,' so called, so assessed, was by the proper officer sold to the state of California, as in said complaint alleged. That on March 24, 1898, defendant assigned said mortgage to Abner Doble Company, a corporation, and that said Abner Doble Company accepted said assignment, and that on April 13, 1898, the said Abner Doble Company, for value, assigned said mortgage to Thomas Chichizola who at that time had notice of the terms of said assignment to said Abner Doble Company. That on, to wit, May 4, 1898, said Chichizola commenced a suit in the superior court of said Amador county to foreclose said mortgage, and thereafter such proceedings were duly and regularly had therein that the said property was by the order and decree of said court in said cause ordered to be sold in satisfaction of the sum due upon said mortgage, to wit, the sum of $18,042.63 and $7.50 costs. That a sale of said property was thereafter duly and regularly made, pursuant to the order and decree of said court in said cause, and at such sale the said Thomas Chichizola bid in the said property, paying

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