Opinion
Rehearing Denied Aug. 8, 1931.
Hearing Granted by Supreme Court Sept. 17, 1931.
Appeal from Superior Court, Los Angeles County; Guy F. Bush, Judge.
Action by the California Savings & Commercial Bank against Frazier McIntosh, as executor of the will of Harriette E. Wheeler. deceased, and others. From a judgment for defendant, plaintiff appeals.
Affirmed.
COUNSEL
Edgar K. Brown and Leo B. George, both of Los Angeles, for appellant.
Frazier McIntosh, of Los Angeles, for respondent.
OPINION
BISHOP, Justice pro tem.
Plaintiff was denied all relief against defendant Wheeler in this action to foreclose a mortgage, because her (Wheeler’s) consent was not given to a post execution alteration of a mortgage by which some of her property was added to its embrace. We are of the opinion that the unapproved alteration was properly found to have relieved her of all liability under the mortgage.
The lot involved was one of a number deeded to defendant Wheeler’s husband and to her codefendant Brown in September, 1923. At the time of the execution of the mortgage, which followed soon after the deed, the northwesterly twelve feet of this one lot had been deeded to a city for some public purpose, so that portion of the lot was omitted from the property included in the mortgage by employing the words, immediately following the reference to the lot, "excepting the northwesterly twelve feet thereof." Some time later, after March 26 of the succeeding year, probably, when the city reconveyed the strip, the mortgagee, plaintiff here, made several changes on the face of the mortgage, among others being the elimination of the words last quoted, which resulted in the mortgage reading as though the whole of the lot were included. This tinkering was done with the approval of defendant Brown, who was potent in plaintiff’s councils, and for the purpose of this opinion we are assuming it was done with the consent of defendant Wheeler’s husband. It was not done with her consent.
The effect of the unauthorized alteration of an executed contract is declared in section 1700, Civil Code, in these words: "Extinction, Unauthorized Alteration. The intentional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act." That an alteration which results in placing property for the first time under a mortgage lien is a material one is obvious. Appellant would escape the paralyzing effect of the section by securing a finding that there was no fraud involved here, and the alterations were made to correct a mutual mistake. So far as concerns the change in the mortgage whereby eleven lots were eliminated from its burdens, because included in the mistaken belief that they belonged to the mortgagors, such a finding might be made, but there is no serious contention advanced that the trial court could have found, and it did not find, that the northwesterly twelve feet was originally omitted through error or subsequently included to correct a mistake. The absence of a fraudulent purpose in making the alteration does not cure it of its deadening influence. Section 1700, Civil Code, does not recognize any such limitations, and the cases cited by appellant do not support the conclusion that a material alteration, i. e., "one that works some change in the rights, interests, or obligations of the parties to the writing" (Lasky v. Bew [1913] 22 Cal.App. 393, 134 P. 358, 360), is harmless if not in furtherance of a fraudulent purpose.
The finding that defendant Wheeler did not consent is challenged on the ground that her husband consented and he as her agent thus bound her. The twelve-foot strip in question was community property. Appellant so contends, and the evidence, so far as brought to us, is in harmony with this conclusion. Defendant Wheeler’s signature to the mortgage, then, was not an idle act, but was required. Section 172a, Civ. Code. Her husband’s agency did not, apparently, include the right to sign for her. At least he did not. Furthermore, authority to make or consent to an alteration in an executed contract must plainly appear from the evidence; it will not be presumed from the relation of principal and agent. Langenberger v. Kroeger (1874) 48 Cal. 147, 17 Am. Rep. 418; Walsh v. Hunt (1898) 120 Cal. 46, 52 P. 115, 39 L. R. A. 697; Dozier v. National Borax Co. (1917) 35 Cal.App. 612, 170 P. 638; Hengehold v. National Creamery & Produce Co. (1922) 60 Cal.App. 79, 212 P. 239. We assume that a finding that defendant’s husband was her agent would be supported by the evidence. This does not better appellant’s position, however, for there is no evidence that within the scope of the agency he had authority to add property to the mortgage she had executed.
Even if appellant is correct in the other points it presents, the result will not be changed. There may be no evidence supporting the finding that certain representations were made, but a contrary finding would not remove the obstacle to its recovery already discussed. It may be that the evidence does not support the finding that lot 22 was released, but, as the appeal is not from the judgment as it affects defendants Brown, this is an error which, if corrected, would still leave defendant Wheeler entitled to judgment. Appellant argues that the reduction in the interest rate in the note, which the mortgage secured, was not a material alteration. We do not need to determine whether it was or not, for a deficiency judgment against defendant Wheeler was waived, and there can be no recovery on the note in any event.
The judgment is affirmed.
We concur: CONREY, P. J.; HOUSER, J.