32 Cal. 450 | Cal. | 1867
Lead Opinion
This is an appeal by-plaintiffs from a judgment in favor of Rene, in an action to foreclose certain mortgages wherein Rene was made a party as a subsequent purchaser. Whether we regard the suit as an action to enforce a lien under the instrument dated April 13, 1851, claimed to have been executed by Vignes and his children, or to foreclose the mortgage executed by the Sansevains to Vignes, the result, as to Rene, will be the same. The instrument of April 13, 1851, is not under seal, and whether properly executed and acknowledged in other respects or not, was not entitled to record under the Act concerning conveyances, as it stood at the date of the instrument. The record, therefore, did not impart constructive notice of its contents to anybody; and unless Rene had actual notice of the contract embraced in the instrument, he was not affected by
We will notice one more example wherein the answer is said to be evasive, more for the purpose of condemning the complaint, than the answer. The plaintiffs in another part of their complaint allege, “ that said Rene, before the execution of said mortgage to him of said Aliso ’ property, dated December 7, 1860, by said J. L. and Pedro Sansevain, sent from San Francisco to Los Angeles, as plaintiffs are informed and believe, a special agent or attorney, who examined the records of said county, took a copy of said mortgage or agreement of 13th of March, 1851, was fully informed of the existence thereof and all the facts connected therewith, and duly reported and represented the same to Rene prior to the execution of said mortgage of the 7th December, 1860.” The answer denies in the language of the allegation the sending of a “ special agent and attorney,” or that “ any such special agent or attorney examined the records,” etc. And it is said that this is evasive, because the answer uses the term “special" which is also in the allegation. Admit it to be so, and that this mode of answering is reprehensible, yet the complaint is equally reprehensible. The whole allegation is immaterial, and required no answer at all. This is pleading mere evidence, and is a mode of fishing for testimony not countenanced by our system of practice. We have no bills of discovery. If the plaintiff required the testimony of the defendant, the proper mode of obtaining it, was, to put the defendant upon the stand as a witness. He is not bound to answer all matters of evidence which the plaintiff chooses to allege. The oEce
It is by such answers to independent and immaterial allegations, that it is sought to qualify the direct answer to the material allegation of notice, of which answer they form no part, and thereby work out a defective issue on that point. We think the notice was fairly in issue, and that-any other construction would be unreasonable, and render it hazardous for any defendant to answer immaterial matter at all, and require him to determine at his peril whether matter alleged
The covenant in the mortgage of the Sansevains to Yignes to “ pay and discharge all legal mortgages and incumbrances of whatever nature and description ” on the premises did not put Rene upon inquiry as to any incumbrances which were not matters of record. There was a mortgage of record to which this covenant could properly be referred. He was not bound to look beyond the record. He cannot be charged with constructive notice of any instrument improperly recorded. It makes no difference, then, whether the instrument of March 13, 1851, is within the covenants of the Sansevain mortgage to Yignes or not, unless Rene had actual notice, and the'Court has found that he had no notice. The judgment as to Rene must, therefore, be affirmed. This is a separate appeal from that of the Sansevains and Requena, and from a different part of the judgment. There being no connection ■between the two appeals, it is unnecessary to await the determination of the other appeal.
Judgment affirmed as to defendant Rene.
Dissenting Opinion
In my judgment, the answer, when examined as a whole, does not traverse the allegation of the complaint charging him with notice of the existence of the instrument bearing date the 13th of March, 1851. He first lays the foundation for his denial of notice by denying that such instrument was a mortgage, and then says in substance that he had not notice of the mortgage. The case, in my opinion, falls within Brown v. Scott, 25 Cal. 189. I am of opinion the judgment should be reversed and a judgment entered for the plaintiffs, declaring the premises subject to the mortgage. I may hereafter express my opinion more fully on the subject.
Mr. Justice Sanderson did not express any opinion.