193 P. 169 | Cal. Ct. App. | 1920
Action to foreclose a mortgage. Judgment went for plaintiff, from which defendant appeals.
It appears that on November 18, 1908, the Security Investment Company of Redlands made and delivered to plaintiff its promissory note in the sum of $10,000, payable three years after said date and bearing interest at the rate specified therein, which interest by the terms of the note was payable quarterly. On the same date said Security Investment Company executed and delivered to plaintiff a mortgage on the real estate described therein to secure the payment of said note, which mortgage was, on the nineteenth day of November, 1908, duly recorded in the recorder's office of San Bernardino County, wherein the real estate described was situated. Thereafter, on September 27, 1911, said Security Investment Company executed and delivered a grant deed, wherein no reference to the mortgage was made, conveying all its title to the property in question to defendant, who from thence up to August 18, 1915, at regular quarterly intervals paid to plaintiff the interest as called for by the terms of the note. No payments on account of accrued interest, however, were made subsequent to said last-mentioned date, nor were any payments ever at any time made on account of the principal of the note. The original complaint to foreclose the mortgage was filed on December 26, 1918, some seven years after the maturity of the note, which, according to its terms, became due and payable November 18, 1911. On January 27, 1919, an amended complaint was filed wherein, in addition to the usual allegations found in complaints for the foreclosure of such liens, and for the purpose of meeting the bar of the statute of limitations, which otherwise might be invoked by *253
demurrer upon such ground, it was alleged that defendant H. M. Barton, on February 18, 1915, "acknowledged to the plaintiff the existence of said mortgage, and agreed to pay the same; and likewise on, to wit: May 17, 1915, and again on, to wit: August 18, 1915, said defendant acknowledged to the plaintiff the existence of said mortgage, and promised to pay the same. Said acknowledgments were contained in several writings signed by said defendant H. M. Barton"; all of which allegations were denied by defendant in his answer, in addition to which, as a defense to the cause of action, he alleged that the cause of action set up in the amended complaint was barred by the provisions of subdivision 1 of section 337, subdivision 4 of section 338 and by subdivision 1 of section
The sole contention of appellant is that the evidence is insufficient to support this finding.
The action is merely to foreclose the lien of the mortgage. No personal judgment is sought, either against the maker of the note or against defendant, and since, as to the maker of the note, in the absence of any facts pleaded tolling the statute, or acts on its part constituting an acknowledgment *254
or promise continuing the contract, as provided in section
It follows, we think, that as subsequent grantee of the mortgagor, defendant's relation to the mortgage was the same as though he in the first instance had executed the same on his own property, thereby creating a lien as security for the performance of the obligation of the Security Investment Company, maker of the note. That the promissory note evidencing the obligation to pay the money and the mortgage creating the lien must under the circumstances be deemed separate and distinct contracts as to which the party to either contract, without affecting the right of the other to plead the statute, might continue or extend the contract to which he was a party by complying with the provisions of said section
Since we hold that, notwithstanding the note was barred, the mortgage was a contract which could be extended or continued, as provided in section
The judgment is affirmed.
Conrey, P. J., and James, J., concurred. *257
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 9, 1920.
All the Justices, except Sloane, J., concurred.