Von Reynigom v. Revalk , 1 Cal. Dist. Ct. 73 ( 1857 )

Hager, J.

This is a controversy between the creditors of John Revalk as to priority of mortgage on certain premises in the city of San Francisco. There is no doubt but that the property in question was the homestead of Revalk and wife from the 7th day of September, 1854, to the 10th day of December, 1856, upon which day the death of Mrs. Revalk by rule of survivorship, vested the entire estate in her husband, and defendant’s mortgage being already upon record, must of necessity take priority to plaintiff’s mortgage which did not become matter of record until the 11th of December, (one day after Mrs. Revalk’s death.) Had plaintiff’s mortgage been placed upon the records before Mrs. Revalk’s death, his rights might have been thus preserved, but this neglect on his part forfeits in my opinion, whatever advantages he may have acquired by virtue of the wife’s signature; and applying the statute as to conveyances and its requirements to this case, I find that defendants Kraimer and Eisenhardt hold the first mortgage and are entitled to have their lien first satisfied out of the proceeds of the mortgaged premises.