P. H. RUSSELL v. GEORGE H. MIXER, MELISSA MIXER, and JANE P. MORRILL, 42 Cal. 475

By the Court, Wallace, J.: This cause was recently here upon a former appeal (39 Cal. 504), and, upon its return below, an amended complaint was filed, averring in substance that, after the assignment of the five hundred dollar note by Miller to Russell, an agreement was made between them (to which the mortgagors, Mixer and wife, were not parties, ¿nd of which they had no knowledge), to the effect that Miller should assign the one thousand five hundred dollar mortgage to Russell,- in order to enable the latter to more effectually control it; that, with this view, Russell and Miller proceeded together to the Recorder’s office; that, when they arrived there, Miller, at the suggestion of Russell, entered a satisfaction of the mortgage upon the,record—both he and Russell supposing that the previous agreement to assign it would be effectuated thereby, and both being surprised when they afterwards learned that they had, thereby, wholly discharged the lien of the mortgage, instead of keeping it on foot in the hands of Russell, the plaintiff, as they intended to do.

There is no controversy between Miller and the plaintiff, but the mortgagors, Mixer and wife, insist that the mortgage lien, which was removed by the entry of satisfaction, should not be restored nor the satisfactión canceled. The Court below having entered a decree against them, they bring this appeal, and the only question presented, is whether or not, upon the facts stated in the amended complaint, the plaintiff is entitled to the relief he obtained. We think that there can be no doubt that he is.

The agreement between Miller and himself was for an assignment and transfer of the mortgage—the mistake occurred wholly in the selection of the means by which this agreement was to be effectuated. There is no appreciable distinction between this case and that where a scrivener, through ignorance or inattention, fails to select or prepare such an instrument as effectuates the previous agreement of parties, and relief is always decreed in that case. (1 Story Eq. Jur.

Sec. 115.) Had the Recorder here, upon being informed by the parties that the agreement between them was that the mortgage in question should be more effectually transferred to Russell, prepared a release, instead of an assignment, whether he did so through mere inattention to what he was doing, or through a misapprehension of its legal effect in the premises, there would be no doubt that equity would relieve against the mistake. The rule must be the same in a case where the parties have made the mistake for themselves, and without the aid of either scrivener or Recorder. Judgment affirmed. Mr.

Chief Justice Rhodes dissented. Mr. Justice Temple did not participate in the foregoing decision. Afterwards, a petition for rehearing having been filed by defendants, the following decision was rendered: By the Court, Wallace, J.: In the original complaint before us on the first appeal (39 Cal. 504), there was not a sufficient, nor any, averment of a mistake having occurred in the entry of satisfaction of the mortgage in question.

There was no allegation that there had been an agreement between Russell and Miller for a transfer of the mortgage by the latter to the former, and that the mistake occurred in the attempted carrying this agreement into effect.

In the amended complaint, however, it is averred, that Russell applied to Miller to obtain an assignment of the mortgage; that Miller consented to give him the assignment, and that the two proceeded together to the Recorder’s office “for the express purpose of making such transfer to this plaintiff.” The case, as thus presented in the amended complaint, is essentially different from that appearing in the original complaint in the respect indicated.

It is true that even in the amended complaint it is not alleged with commendable certainty and precision, that Miller did agree to transfer the mortgage to Russell, and had an objection been taken below to the sufficiency of the amended complaint on that ground, the plaintiff must have been driven to a further amendment; but no such objection was interposed there, and it cannot be maintained, that for these defects in manner, rather than in matter, of averment, the complaint is radically insufficient to sustain the judgment. The rehearing must, therefore, be denied, and it is so ordered. Neither Mr.

Chief Justice Rhodes nor Mr. Justice Temple took any

part in the decision on rehearing.