233 P. 412 | Cal. Ct. App. | 1924
This is an appeal by the defendant Albert Romani from a deficiency judgment against him in a suit to foreclose a mortgage upon certain real property in Alameda County. Romani borrowed money from the plaintiffs and as security executed his promissory note, dated April 16, 1913, and due in two years from date for $1,650, payable to plaintiffs. This note contained the following clause: "If this note is not paid at maturity it is hereby renewed from year to year at the option of the holders until paid, and during such year the maker shall not have the right to pay the same."
This note was secured by a mortgage upon real property, some of which was situated in the county of Sacramento and some of which was situated in the county of Alameda, California. The mortgage was duly recorded in both these counties. On May 17, 1913, the plaintiffs signed the following release upon the margin of the records of Sacramento County: "This mortgage is fully paid, satisfied and discharged, Louis Caffaro, Francesca Caffaro. Signed and acknowledged before me this 17th day of May, 1913. C.A. Root, County Recorder." No release was recorded in the county of Alameda and the property situated therein was transferred to W.D. McKoy in March, 1917. McKoy was made a defendant herein, but has not appealed from the judgment of foreclosure, and so there is no question before us as to the right of plaintiffs to subject the property in Alameda County to the payment of the debt. The appeal concerns itself merely with the deficiency judgment against *450 Romani, who claims that as to him the debt is discharged and satisfied by the written release.
The appeal presents two questions. [1] The first contention of appellant is that the action is barred by section 337 of the Code of Civil Procedure. This is true, unquestionably, unless the clause above quoted, automatically renewing the note from year to year, prevents the statute from running. The only case which the parties have been able to present to the court which involves a similar provision in a note is the case of Kleinsorge v.Kleinsorge,
Appellant contends that even though the note be construed as self-renewing, there should be some limit to the number of automatic renewals, and he cites the case of Wells-Fargo v.Enright,
[2] The other question before us is as to the effect of the release upon the margin of the record in Sacramento County. Section
The judgment is affirmed.
Sturtevant, J., and Nourse, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 26, 1925.
All the Justices concurred. *452