The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-07-12
KbOlIII LIILdAII1d.
A Tehama Jurist UnraveIs a Badly
Tangled Case.
j. A. Parker's Frequent Mortgages OF
Tract of Land-Lawyer lay
lor's Serious Mistake.

earned the reputation of being the most
mixed-up suit on record, has just been
decided by Judge John 7. Ellison of the
Supreme Court of Tehama County.
Several years ago the Union Building
and Loan Association loaned j.
a. Parker of this city $1,000, and
! took as security mortgage on tract
! Of 500 acres of land owned by Parker in
! Tehama County. After 81 1000 of the debt
had been paid up the mortgage was as
/ signed to Henry Wittenbrock, also of
this city. Subsequently Parker asked to
! have l02 acres of the land released. The
matter was placed in the hands of l.. S.
/ Taylor, who was then the law partner of
/ S. S. Holl, and who was attorney for
Wittenbrock. Taylor drew up the re-
lease, but in doing so
MADE A MISTAKE,
! Which, as subsequent events proved, was
a very serious one for some of the parties
Instead Of releasing 102 acres, the docu-
ment as drawn up released the entire
tract of 800 acres. The document was put
on record and the mistake was never
| noticed.
The next step in entangling matters
/ was ASu, SOIne IEOuLnS ldlST, 1drhST
! borrowed $1,000 from James Bithell on
/ the same land. The abstract showed that
| the title to all the land was clear, and,
of course, Bithell did not hesitate. He
took four separate mortgages from Par
ker to secure the payment Next Par
ker went to David Thurman, now de-
ceased, and borrowed S2,000-on the same
land.
THE RESULT.
The wind-up of all this was that the
! first thing Mr.. Parker knew, six fore
closure suits were pending against him:
| four by Bithell, one by the estate of Fuhr-
man and one by Wittenbrock.
Then Wittenbrock discovered the mis-
take, and he brought the suit lust de-
cided. He sued to have his claim take
| precedence over all the others. and made
| Bithell and the Thurman estate code
! PENDANTS. Wittenbrock set forth that
as Taylor and Holl were partners, the lat
ter should have known what Taylor
knew about the release, and that as HolI
proceedings, Bithell should have known
something about it, too. His theory
seemed TO be that Taylor should have
known of his mistake.
This suit took place, as was above
stated, in Tehama County, and it was
vigorously contested. Wittenbrock was
represented by Armstrong q Plat
nauer, the Thurman estate by Isaac
Joseph and r. L. Devlin, and Bithell by
S. S. Holl and A. l.. Hart.
THE DECISION.
Judge Ellison decides the case virtually
against Wittenbrock. ''Mr Holl had no
information or knowledge Of the agree
ment between Parker and Wittenbrock
for partial release Of the mortgage" he
says. MIR. Holl, after examination, de-
clared the title good and clear, and there
upon prepared the four mortgages re-
ferred to in the complaint. Said mort
cages were acknowledged at the time in
the manner and before the Notary all as
detailed In paragraph Z, and were re-
corded October %, 1888, in Book G, of
records of Tehama County, at the request
of S. Scion Holl. At the time said mort
cages were signed, acknowledged and re-
corded, said Bithell had no actual notice
or any knowledge or means Of knowl-
edge of the mistake that had been made
in the release Of plaintiffs mortgage, and
had no constructive notice of any mis-
take or of any fact leading to such notice,
except such notice as law might
impute to him, by reason of Mr..
Taylor's connection with the trans
action of the release, of his rela-
tons to Hol1 and of his relation to the de-
tendant and to the firm Of Taylor d Holl.
The abstract examined by Mr.. Holl,
either by itself or in connection with the
release, showed that the Wittenbrock
mortgage had been fully released and
discharged of record.
UNRAvELING THE sNARL.
upon these facts what are the rights
Of the parties?" asks the court 1.-THE
plaintiff claims that the defendant Bithell
had notice of the mistake in the re-
lease of the mortgage when he mazda
his loan to the defendant, and that there
fore his lien should be postponed to the
lien OF the plaintiffs mortgage. And
notice is attempted to be imputed to him
by the fact that as the release was drawn
by Taylor, member Of the firm of Tay-
Tor II Holl, Taylor had notice of the mis-
take in the release. That the firm of
Taylor d Holl were attorneys for de-
fendant Bithell in the negotiation of this
loan. That whatever the firm had notice
OF the defendant had notice of, and that
as Taylor had notice of the mistake in
the release Of plaintiffs mortgage, there
; fore MIR. Holl, member OF said firm,
had like notice imputed to him by law
and that the defendant Bithell was
charged with whatever notice either
member Of the firm of Taylor & Holl
had.
There is nothing in the case to show
that either the plaintiff Wittenbrock or
the defendant Bithell had any actual
| knowledge Of the mistake that had been
made in releasing plaintiffs mortgage.
nor did either of them have actual notice
OF any fact sufficient to put them upon
inquiry, and the same remarks apply to
Mr.. Holl.
The plaintiff for long time after the
release was made, was entirely ignorant
Of the fact that it had been released in
full, and the defendant, when he took his
mortgages, did not know anything of the
mistake that had been made.
1T seems to me that under the facts to
charge Bithell with notice of the mistake
that Taylor had made would be carving
the doctrine of constructive notice long
way, and l find nothing in the decisions
cited by counsel for plaintiff that hold
this extreme view.
TAYLoR's MISTAKE.
Mr.. Taylor. in drawing the release of
the mortgage, was the agent OF the plant
if Wittenbrock and whatever he did was
the act OF the plaintiff. The plaintiff
signed the release without reading it over
or examining it for himself and without
knowing what its contents were, except
as he had been told by Mr.. Taylor. This
is somewhat an unusual thing for a care-s
full business man to do. and if he had used
the diligence and carefulness expected of a
business man and read the release. SO
called, over before he had signed it he
would not have failed to discover that il
was release of the entire mortgage.
Hence, he is not entirely clear of some
negligence IN the matter. On the other
hand there is no fact or circumstance
proved which imputes to the defendant
Bithel any carelessness or negligence in
the entire business transaction. When
applied to to make the loan he did the
prudent thing of not agreeing to make it
until an abstract had been furnished, and
until, too, the abstract had been exam
ined by competent attorney"
wITTENBRoCK's soLACE.