O. J. WOODWARD, Respondent, v. JOHN BROWN et al., Appellants, 119 Cal. 283

THE COURT. A petition for hearing in Bank having been granted, upon further consideration it appears that on January .20, 1892, McDonald conveyed to John Brown Colony, a corporation, and to D. S. Dorn blocks 51 and 60. On that day the title still remained in Brown. The Dorn deed was recorded January 23d, while'the John Brown Colony deed was recorded January 26th. On January 25, 1892, Brown conveyed these same blocks to McDonald, the title thus inuring to Dorn, who first recorded his deed.

The presumption of law relating to blocks 51 and 60 was correctly applied in holding in the former opinion that the Dorn deed was‘first delivered. But it does not apply to the John Brown Colony deed as respects the other blocks and lots conveyed to that corporation. As to them, that deed must take date of January 20th, and therefore prior to the Dorn' deed, and the Dorn block could not be released without crediting their full value upon the mortgage debt, as the mortgagee had actual knowledge of the John Brown Colony deed. The value of these blocks was found to be $8,000.

The mortgagee did in fact credit the mortgage debt with $5,000 on account of the sale to Dorn, so that there remains to be credited the further sum of $3,000, which should be done as of the date of the release of the Dorn blocks, March 1, 1892. We see no way to apportion this amount so as to exonerate the lots owned by the, appealing defendants alone in the ratio that their lots bear to the whole number of lots sold by the John Brown Colony; -nor do we see any way by which any principle of apportionment could be applied upon any basis of values.

As the case stands, it is the fortune of the nonappealing defendants to share the benefits of this credit, as it would have been their misfortune had the dates of the conveyances to John Brown Colony and to Dorn been different. In the matter of the petition by plaintiff for a modification of the opinion directing that Cecil Ricketts be made a party defendant, the petition will be granted in so far that should it appear that Ricketts had sold his lot prior to the commencement of the action to a person who was made a defendant, the direction heretofore given may be disregarded.

Wherefore, it is ordered and adjudged by this court in Bank that the judgment heretofore rendered in Department be modified in the foregoing particulars, and that the judgment as modified stand approved.