127 P. 1051 | Cal. Ct. App. | 1912
Defendants W. J. Davis and Ida R. Davis, on March 25, 1904, executed their promissory note payable to J. R. Thacker for the sum of $1,000 one year after date, and contemporaneously therewith gave a mortgage upon two certain lots of land at Santa Monica to secure the payment of said promissory note. On the twenty-fourth day of March, 1905, the mortgagee assigned the note and mortgage to plaintiff, who thereafter remained the owner of same. On the thirtieth day of June, 1910, the mortgagors entered into an agreement which was thereafter consummated, by the terms of which they exchanged the property so mortgaged with appellant Lula H. Plowman, the agreement of exchange containing this clause relative to the mortgage indebtedness referred to and existing against the property of defendants W. J. and Ida R. Davis: "Above property subject to a mortgage of one thousand dollars to be assumed by owners of first piece." *799
The Davises on their part assumed an encumbrance of $1,500, then existing against the property of Lula H. Plowman which they received in exchange for their own lots. This action was brought on September 22, 1910, to foreclose the mortgage given by the Davises to secure the payment of the $1,000 note, Lula H. Plowman and her husband, A. J. Plowman, being made defendants, and it being alleged in the complaint that on the thirtieth day of June, 1910, the date of the making of the agreement of exchange between the Davises and Lula H. Plowman, "the said defendants W. J. Davis, Ida R. Davis, Lula H. Plowman and A. J. Plowman, in writing, acknowledged said note and mortgage and indebtedness, and assumed and agreed to pay the same." Defendants Davis made no appearance in the action, and their default was regularly entered. Defendants Plowman appeared and, among other defenses, set up the plea that the note and mortgage debt was barred by the provisions of section
The argument of these cases is that a party who expressly agrees to pay a particular debt, which the person contracting with him admits that he owes to a third party, cannot thereafter be heard to say that the debt is not owing, and much less, to our minds, should he be permitted to urge that, while the debt was once due from the person with whom he has contracted, the statute of limitations has intervened to prevent its collection. The Plowmans by their contract made with the Davises expressly admitted that the premises which they received were subject to the lien of the mortgage encumbrance, and the Davises chose to consider that debt as being a live and existing obligation required to be performed by them on their part. It follows that if the Plowmans were permitted to maintain this defense, the result would be that they would not pay for the property all that they had agreed to pay. In line with what we have said, the supreme court of Michigan has decided that where a vendee assumes the payment of a mortgage indebtedness, he waives all defenses thereto except payment. (Terry v. Durand Land Co.,
We think that the complaint was properly framed in the form it was presented, plaintiff seeking to foreclose his mortgage and alleging the assumption of the mortgage debt by the Plowmans in the manner stated. For the reasons we have given, we think the trial court erred in concluding that the indebtedness was barred as to respondents.
The appeal is taken by plaintiff from the judgment and also from an order denying a new trial, which judgment and order are reversed.
Allen, P. J., and Shaw, J., concurred.
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 23, 1912.
*1