Humboldt Savings & Loan Society v. Burnham

111 Cal. 343 | Cal. | 1896

Van Fleet, J.

Action to foreclose a mortgage. Defendants, other than Georgia C. Burnham and James D. Boyer, made default; the two latter demurred to the complaint, their demurrer was overruled, and, upon failure to answer, judgment was entered against all the defendants foreclosing the mortgage. From the judgment the two named defendants appeal upon the judgment-roll, the only questions made being as to the sufficiency of the complaint.

1. The contention that the complaint does not state a cause of action, for want of a sufficient averment of presentation of the mortgage claim to the estate of Joel S. Josselyn, deceased, is ill-founded. The particular objection is that the complaint does not allege in terms, either that the claim contained a description of the mortgage, with a reference to the date, volume, and page of its record, or that it was accompanied with a copy thereof. The averment was that the plaintiff did, within the proper time, “ present to said executrix its claim against the estate of Joel S. Josselyn, deceased, for the amount due and to become due on the said note and mortgage, and that the said claim was duly verified in all respects according to law, and was duly allowed and approved by said executrix and by the judge of said court, and that the same was duly filed on the twentieth day of March, 1890, in the office of the clerk of said court in the matter of the estate of said deceased.” The claim was not set out or attached to the complaint. We deem this a sufficient averment of the ultimate fact of presentation as against a general demurrer—and the demurrer here was no less a general one because it undertook to specify the particulars wherein the complaint failed to state a cause of action. Whether the claim as presented was sufficient in form or properly presented was a matter of evidence, of which the general allegation made was sufficient to authorize proof.

In Bank of Sonoma County v. Charles, 86 Cal. 322, relied on by appellant, the claim was set out in full in the complaint, and it appeared affirmatively therefrom that the presentation counted upon was insufficient, and the ruling there made, that the demurrer should have been sustained, was upon that ground, the court saying: “The complaint shows upon its face that the only presentation of the claim was as above stated, and makes the presentation a part of the complaint as an exhibit.” It was not a case, therefore, as it may be conceded is the case here, of a mere defective averment of the essential fact of presentation, but an averment from which it appeared that no proper presentation was ever had. The other cases relied upon by appellant we do not regard as affecting the question under consideration.

2. The further objection that the complaint is ambiguous and uncertain is equally untenable. This objection is based upon the fact that the complaint alleges the note counted upon to have been given by Joel S. Josselyn and Georgia 0. Josselyn, while the note, which is set out in full, appears to have been signed “J. S. Josselyn” and “ G. C. Josselyn”; and it is said that there is nothing to show that the last-named persons are the same two parties alleged to have executed the note, and that for all that appears they may be entirely different individuals. But it is alleged that Joel S. Josselyn and said defendant Georgia G. Burnham, then the wife of the said Joel S. Josselyn, .... then and there made, signed, and delivered to said plaintiff, the payee therein named, their certain promissory note in writing, which said promissory note is in words and figures following, to wit,” and then follows the note. This was quite sufficient to identify the parties signing the note as Joel S. and Georgia C. Josselyn.

3. Nor was it improper to include in the decree the items paid out by plaintiff for taxes and insurance on the mortgaged property. These expenditures were covered and secured by the mortgage and were paid under the authority therein given. Having been paid subsequent to the presentation of the claim, for the protection of the property, they were properly allowed on foreclosure without demand or presentation. (German Savings etc. Soc. v. Hutchinson, 68 Cal, 52.)

The judgment is affirmed.

Garoutte, J., and Harrison, J., concurred.

Hearing in Bank denied.