I am not in accord with the opinion as written in this cause. Under the undisputed evidence and under the findings of the court below, Scheib executed the note and mortgage and delivered them to Beach to be transmitted to plaintiff. There were no conditions or reservations made by Scheib at the time of such delivery. The facts are that on December 7, 1926, plaintiff wrote Beach, the broker in the transaction, and among other things sent him a copy of the note and mortgage with instructions as follows: "Kindly have papers properly executed, recorded and abstracted . . . after which return to this office. . . ." The court finds that on December 27, 1926, defendant Scheib signed the note and signed and acknowledged the mortgage and then finds as follows: "That said note and mortgage, after the same were signed by Charles A. Scheib, were left by him in the possession of S.E. Beach to be recorded and forwarded to plaintiff." The further finding is that Beach thereafter, through his son W.E. Beach, delivered the mortgage in escrow to the Guarantee Building and Loan Association of Hollywood; that in so leaving the mortgage in escrow, young Beach signed himself as the representative of the plaintiff and the escrow party secured the certificate of title, bringing it up to April 8, 1927. The mortgage was also recorded on the same day, and actually forwarded thereafter to the plaintiff. *Page 394
Inasmuch as the certificate of title was procured and the mortgage recorded, the transaction was complete. Whether the plaintiff received the manual tradition of the papers on that day or six months thereafter, on that day the constructive delivery under section 1059 of the Civil Code took place and the authorities cited in appellant's brief apply, such as Carr v.Howell, 154 Cal. 372 [97 P. 885]; Kelly v. Woolsey,177 Cal. 325 [170 P. 837]. Indeed, the following language ofValley Lumber Co. v. Wright, 2 Cal.App. 288 [84 P. 58, 59], is directly in point: "Here the note and mortgage were executed for a definite amount and there was an agreement on the part of the loan association to pay to Wright this amount, with the further understanding that the money should be used for the construction of the building, which latter was to be for the further security of the loan. The loan association was under an enforceable obligation to furnish this money and the execution of the note and mortgage was sufficient consideration for the agreement."
A kindred line of cases also includes Stone v. Dailey,181 Cal. 571 [185 P. 665], and Hotaling v. Hotaling 193 Cal. 368 [224 P. 455, 56 A.L.R. 734]. In each of them a deed, after execution and symbolical delivery, was actually left with the grantor himself and the delivery was held proper. In this case if Scheib himself had gone to the title company and procured the certificate and caused the mortgage to be recorded, there would have been a delivery of both the note and the mortgage on the happening of this event, even though they had remained physically in the possession of Scheib.
I think the judgment in this cause is clearly wrong and should be reversed.
Curtis, J., concurred. *Page 395