The record-union., 1898-06-18

ora OF the 020Q TO WIII6u0TUckAW WOulu
give it precedence over plainttfrs mort
gage, unless Wittenbrock at the time
Of the execution and delivery to him of
said deed had actual knowledge Of the
existence of plaintiffs mortgage or OF
the existence of such circumstances as
would put a prudent man upon inquiry
as to the existence of said mortgage.
The controversy. between the parties
narrowed itself at the trial to the Ques-
ton of whether or not Wittenbrock. at
the time of the execution and delivery
to him of the deed by the defendant
Troi and wife, had actual knowledge of
the existence of the plaintiffs mort
gage. The testimony adduced at the
hearing was sharply in conflict as to
whether Wittenbrock did have actual
knowledge of the existence of said
mortgage.
Plaintiff himself testified that some
time during the year 1893 Wittenbrock
called on him and wanted to know the
amount of the Indebtedness of the de-
fendant Troi to the plaintiff The
plaintiff informed him that he did not
know the exact amount of said indebt-
edness and could not inform him un-
TIL, he, plaintiff, had examined his
books and that after doing so would
furnish Wittenbrock with a statement
of Troi's account, and this was done in
short time after Wittenbrock's first
call upon the plaintiff. The testimony
does not show who delivered this ac-
count to Wittenbrock. D. w. Car
michael testified that he was at that
time clerk or bookkeeper for the
plaintiff and that he is of the impress
sion that he handed the statement to
Wittenbrock; that he also, at that time,
handed to Wittenbrock Troi's mortgage
to plaintiff. The plaintiff himself was
uncertain as to whether he handed the
statement and the mortgage to Witten-
brock and also uncertain as to- whether
Wittenbrock returned the mortgage to
him personally or not.
Defendant Frank Troi testified that
he knew that the land clause was in
plaintiffs mortgage when it was ex-
ecuted, but he also admitted that prior
to executing the deed to Wittenbrock
he had told Wittenbrock that the title
TO the land in question was entirely
clear. He further admitted saying to
6. B. Slight, a son-in-law of Witten-
brooks that the title was clear when
he made the deed to Wittenbrock. Kit
tie M. Troi, the wife of the defendant
Frank Troi, testified that she knew that
plaintiffs mortgage covered Troi's land
which had been mortgaged to Witten-
brock as well as the crops growing on
the Parker ranch; that she had a con-
versation with Wittenbrock at Elev-
enth and X streets in Sacramento, the
exact date not being given, but said
conversation occurring prior to the ex-
ecution Of the deed to Wittenbrock, and
that he said in that conversation to her
that the plaintiff had a second mort
gage on the land but the same had not
been recorded; that Wittenbrock also
had been to plaintiffs office and got the
mortgage and read it.
r. Platnauer testified that he was
WittenbrocAfs attorney when the deed
from Troi and wife was accepted in
settlements of Troi's indebtedness to
Wittenbrock; that witness caused the
abstract of title to be made of said
lands covered by the mortgage to Wit
tenbrock and, that when the deed was
executed, both Troi and wife were asked
by the witness if the title to the land in
question was incumbered in any way
other than by Wittenbrock's mortgage
and that each of them told him that
the title to said land was entirely clear;
that some months after the execution
of the deed to Wittenbrock by the
Trois. witpesss called upon Mrs. Troi
at her REQUEST to attend to some legal
business for her, and at that time the
title to the land in question was the
subject of conversation and Mrs. Troi
told Platnauer that she did not know
that Kendall had a mortgage on the
land and never heard anything about
it until about the time of this conver-
sation with Platnauer. Nor did Mrs.
Troi at this time tell Mr. Platnauer
anything concerning the conversation
which on the witness stand she claimed
to have had with Wittenbrock at Elev-
enth and K streets in Sacramento.
Platnauer further testified that as soon
as he learned of plaintiffs claim Of
ownership of a mortgage ON the land in
question that he, Platnauer, immedi-
ately sought Mr.. Wittenbrock and told
him about the matter and that Witten-
brock seemed very much surprised.
Eliza Wittenbrock, daughter of said
Henry Wittenbrock, testified that her
father was a German and had but linn
tied education in English: that he could
not write English, and could not read 1t
when written with pen; that she and
other members of the family read his
letters when received, and wrote re-
plies thereto, at her fathers dictation;
that it was impossible for her father to
read the land clause in plaintiffs mort
gage. S. B. Slight, son-in-law of Wit
tenbrock testified in substance to the
same state of facts with reference to
Wittenbrock's knowledge of English
and his ability to read and write it, as
was testified to by Miss Wittenbrock.
He was also positive that it would be
impossible for Wittenbrock to read the
land clause in plaintiffs mortgage. He
further said that since this action had
been commenced the defendant, Frank
Troi had approached him and said that
if there was any clause in plaintiffs s
mortgage covering the real property,
that he (TroD knew nothing about it;
that there was no such clause in the
mortgage when he executed it, and that
plaintiff had offered him liberal induce
ments to be a witness in the case.
Peter Beckendorf testified that he
had, at the request of Wittenbrock, and
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