58 Cal. 147 | Cal. | 1881
Lead Opinion
On the 11th of June, 1873, O. F. Cook made and delivered to Mary M. Coffin his promissory note for the sum of two thousand five hundred dollars, payable twelve months after date, .with interest thereon at the rate of one and a half per cent, per month, to be compounded if not paid every six months, and five per cent, of principal and interest as a counsel fee, in case it were necessary to institute a suit for the recovery of the note and the foreclosure of a mortgage, which was executed by the said Cook to secure payment of the note. The mortgage was recorded on the day of its execution, in the office of the Recorder of Colusa County, and on May 27, 1878, the mortgagee assigned the promissory note
In the proceedings, judgment for the amount of the principal and interest of the note, besides counsel fees and costs, and a decree of foreclosure were rendered and entered on August 14, 1878, in favor of the plaintiff and against the defendant mortgagor, upon which an order for sale was regularly issued, and came to the hands of the Sheriff of Colusa County, who, after advertising the mortgaged premises according to law, sold the same to the plaintiff, executed and delivered to her a certificate of sale, which was filed, and, upon the expiration of six months after the sale—no redemption having been made—executed and delivered to her a deed of said premises, which was duly recorded.
But on the 13th day of August, 1877, more than nine months before the commencement of the action against Cook to foreclose the mortgage, and a year and a day before the rendition and entry of the judgment and decree of foreclosure, Cook, the mortgagor, had sold and conveyed by deed the mortgaged premises to E. A. Harris, Thomas Eddy, Stephen Burtis, Andrew Meyer, C. Grimes, Richard Gleason, George Strinchfield, and Richard Brown, and they, having recorded their deed on the day of its execution, subsequently, to wit, June 16, 1879, conveyed the premises by deed to E. J. Burtis, who, having recorded his deed, entered into possession of the land. Hone of those persons were made a party to the proceedings in foreclosure; the decree of sale of the mortgaged premises was therefore void as to each of them, and the purchaser under the void decree acquired no title. But after-wards, by the order and judgment of the Superior Court of Colusa County, on the petition of the plaintiff, the decree of sale, the order of sale, and the sale made thereunder, were vacated and set aside, and the plaintiff was granted leave to file a supplemental complaint in the action, “ bringing in and making parties thereto, all of the grantees named in said deeds, and all persons whomsoever, having or claiming any interest in or claim upon said premises or any part thereof, acquired after the execution of the mortgage.”
Under that order, the plaintiff, Emeline, on May 3d, 1880,
By moving, in the original action, to make the subsequent grantees of the mortgagor parties to the action, the plaintiff followed the course of procedure approved in Goodenow v. Ewer, 16 Cal. 465; Boggs v. Fowler, id. 561; Ketchum v. Crippen, 37 id. 225, and Aldrich v. Stephens, 49 id. 677. But her motion was not made, and her supplemental complaint was not filed until nearly six years after the cause of action stated in the original complaint had accrued; and, according to the rule for moving within reasonable time, enunciated in Goodenow v. Ewer, supra, it would seem to have been too late to resort to a remedy against new parties in aid of a cause of action which, as to them, was barred by the lapse of time within which, under the Code of Civil Procedure, an action could be brought against them upon the cause of action.
But it is contended that the cause of action was not barred, because the original complaint in the action having been filed against the mortgagor in statutory time, stopped the running of the Statute of Limitations. (§ 350, Code Civ. Proc.) That as a legal proposition is true as to the mortgagor who was made the sole party defendant to the action at the time of filing the complaint. And it would, also, have been true as to those who were subsequently made parties defendants by the supplemental complaint, if they had been made parties before the statute had run in their favor. But they were not made parties until the statute had run. The filing of the original complaint, therefore, stopped the running of the Statute of Limitations only as to him who was the party defendant at the time it was filed; it did not stop the running of the statute in favor of those who were not made defendants in the action at that time; the statute continued to run in their favor. (Shaw v. Cock, 78 N. Y. 194; Atkinson v. A. & S. Co., 53 Cal. 102.) As to them, no action was commenced until the filing of the supplemental complaint in which they were
It is claimed, however, that they are not privileged to plead the Statute of Limitations, “because they are in no better position than Cook himself; they could not plead it except through him, and he could not plead it for the reason that suit had been commenced against him in time.”
But they were the owners, of the estate, and were necessary parties to any action brought to foreclose the mortgage lien upon it created by their grantor. Without their presence in Court as parties defendants to the action, a decree of foreclosure of the lien by a sale of their property would have been a nullity. If they were not made parties to the action until the lapse of time had barred the remedy for the foreclosure of the lien, they had the right, independent of their grantor, to plead the statute in bar of the action against them. (McCarthy v. White, 21 Cal. 495; Lord v. Morris, 18 id. 484; Lent v. Shear, 26 id. 361.) Under such circumstances the plaintiff had no foreclosable lien upon their property. It had become extinguished by the lapse of time. (§ 2911, Civ. Code.) The demurrer to the supplemental complaint was properly sustained.
Judgment affirmed.
Ross, J., concurred.
Concurrence Opinion
In addition to what is said by Mr. Justice McKee, I desire
The commencement of the action against the mortgagor did not keep alive the lien against the mortgaged premises. He had parted with the legal title, and had no interest to protect the premises against the lien. In Wells v. Harter, 56 Cal. 342, this Court held that the lien of a mortgage becomes extinguished by the lapse of four years’ time, without suit brought. (Civ. Code, §§ 2911, 2922.) More than four years had expired from the date of the note and mortgage when the respondent, E. J. Burtis, and the other respondents were made parties defendant.
