170 P. 428 | Cal. | 1918
Plaintiff appeals from a judgment against it and from an order denying its motion to vacate the judgment and to enter judgment in favor of said plaintiff.
The suit was upon a rejected claim upon a promissory note for four thousand dollars and interest at eight per cent per annum, executed by J.M. Martin, defendants' testator, in favor of George D. and Charles W. Woolley, or order, and transferred and delivered to plaintiff before maturity. The note is set out in the pleadings. It is dated Craig, Colorado, August 23, 1911, and is made payable "on or before June 21st, 1914," at a designated bank in Craig.
The court found the execution of the note; its due transfer to plaintiff before maturity; the presentation of a claim against the estate of J.M. Martin, deceased, based upon said note, and the rejection of that claim by the executrices, who are respondents herein. But it was found also that the note was secured by mortgage of even date upon certain described property in Moffat County, Colorado; that said mortgage had been duly recorded on the day of its execution; that neither the mortgage deed nor a copy thereof nor any reference thereto appeared as a part of plaintiff's claim as presented against the estate of Martin, and that the mortgage had not been satisfied or discharged. The court's conclusion of law that defendants properly rejected the demand against the *225 estate of their testator was based upon the failure to describe or refer to the mortgage in the claim presented to them.
Appellant contends that defendants failed to prove the mortgage by competent evidence; that even if the existence of the mortgage was sufficiently established, the court improperly excluded evidence tending to show that the security had become valueless and thus to excuse reference to the mortgage; that by basing its claim on the note alone, plaintiff waived the security of the mortgage, and that the statute upon which respondents rely has no extraterritorial force.
Appellant attacks the finding whereby the existence of the mortgage is declared. Certain oral testimony given and a copy of the alleged mortgage introduced in evidence are subject to appellant's objection, but even if the court's rulings with reference to these matters were erroneous (and we do not decide that they were), the fact remains that the answer averred the due execution of the mortgage and a purported copy was attached to the answer and made a part thereof. The record discloses no affidavit denying the genuineness of the mortgage and its due execution, and we must hold, therefore, that these things were admitted. (Code Civ. Proc., sec. 448; Rosenthal v. Merced Bank,
Respondent's case rests upon the provisions of sections
Our conclusion upon this branch of the case makes it unnecessary to consider the other interesting questions presented by the briefs.
The judgment and order are reversed.
Wilbur, J., and Victor E. Shaw, J., pro tem., concurred.
Hearing in Bank denied. *227