26 Cal. 361 | Cal. | 1864
Appellant relies principally upon the cases of Lord v. Morris, 18 Cal. 484, and McCarthy v. White, 21 Cal. 501. Respondents insist that there are elements in this case which distinguish it from the cases cited, and withdraw it from the operation of the Statute of Limitations as construed in those cases. If mistaken in this, respondents’ counsel then earnestly insist that those decisions are erroneous, and urge the Court to re-examine the questions decided, and if found to be so, to overrule the cases.
Mr. Justice Norton, in McCarthy v. White, said: “ I concur in the decision of this case upon the ground that both the questions upon which there could be any argument upon principle have been decided by this Court in the case of Lord v. Morris, and that these are questions of that character that, once deliberately decided, and after having stood for several years as rules to govern transactions, they should not be opened merely to consider again the weight of conflicting decisions and opposing reasons.” These considerations operate with still greater force now. The questions arise upon the construction of a statute of very extended and general application, and frequently set up as a defense in this State. Lord v. Morris was decided three years ago. Three sessions of the Legislature have been held since the announcement of the decision, and no amendment of the Act upon the point decided has been made. Both the Courts and the Legislature have acquiesced in the principles announced in the decision. Important rights may in many instances have accrued under it, and for this reason we should not feel at liberty to overrule the case, even if we should arrive at a different conclusion from that attained by the learned Justices who decided it. Entertaining these views, we do not feel it incumbent on us to re-examine the reasons upon which the decisions are based.
On the 30th of July, 1853, defendant Shear executed to Hadder a note for two thousand dollars, payable three months after date, and secured it by a mortgage on the'lands described in the complaint, which note and mortgage were assigned to plaintiff on the 30th of May, 1854.
On the 22d of August, 1853, said Shear executed to defendant Grogan a note for four thousand dollars, payable six mouths after date, and secured it by a mortgage on the same land.
On the 1st of April, 1854, said Shear executed to plaintiff another note for two thousand five hundred dollars, payable one year after date, also secured by a mortgage on the land.
Soon after the purchase of the Hadder note and mortgage, plaintiff left California for Hew York, his permanent residence. Before his departure for Hew York he placed the two notes and mortgages Mn the hands of defendant Grogan, together with a power of attorney authorizing Grogan to collect the interest on said mortgages. The Court finds that soon afterwards, to wit: before the 16th day of October, 1854, qalaintiff “gave him (Grogan) power by parol to enforce the collection of said notes by foreclosure of the mortgages,” to which latter finding ajipellants except, as not being supported by evidence. Defendant Grogan retained the notes in his possession till February, 1858, collecting interest from time to time and remitting it as collected, charging commissions. But no interest appears from the evidence to have been collected or received by Grogan after the spring of 1855. Ho suit had been commenced to foreclose the Hadder mortgage, and no
Upon these facts found by the Court, the conclusion of law was deduced, “ that, in equity, the defendant Grogan is not permitted to set up the Statute of Limitations against the plaintiff” and that plaintiff is entitled to have the amount due on the Hadder mortgage first satisfied out of the proceeds ot the sale of the mortgaged premises, before the payment of the mortgage of defendant Grogan; and a decree was entered in accordance writh this conclusion, from which decree and the order denying a new trial, Grogan appeals.
There is no finding as a fact that Grogan intentionally allowed the plaintiff’s cause of action to be barred for the purpose of enabling himself to take advantage of the bar to acquire the first lien on the property, or that he acted in any respect with a fraudulent motive; nor does the testimony appear to us to justify such a finding.
We cannot perceive that the facts of this case present a stronger case-against defendant, Grogan, than that of McCarthy v. White et al. presented against Kelly. In some respects that case presented stronger equities in favor of the plaintiff than this; for in that case the plaintiff was ignorant of the adverse interest of his agent, Kelly, whereas in this, the plaintiff was perfectly aware of the mortgage of Grogan, and that not only the principal, but the interest, was longer in arrears than on his own. Besides, there is nothing in the findings, or even in the evidence to show that any discretion was given to Grogan as to bringing suit or enforcing payment, or that he had any instructions, or made any promise to bring suit with
But there is another view which seems to be entitled to weight. The plaintiff has sustained no injury in consequence of the neglect of defendant Grogan to commence suit against Shear. Shear has not set up the Statute of Limitations, and the plaintiff has obtained, by his decree foreclosing the mortgage as to Shear, precisely the same relief as against Shear, and Shear’s interest in the land, that he would have obtained had the suit been commenced within four years after the right of action accrued. The postponement of the Hadder mortgage to Grogan’s, by reason of the bar of the Statute of Limitations, results from the failure of Grogan to commence suit against himself, and not his failure to commence suit against Shear, or to procure a written acknowledgment of indebtedness from Shear. Upon the principles of the decision of Lord v. Morris, 18 Cal. 484, and Low v. Allen, (ante,) neither an acknowledgment of the indebtedness in writing by Shear, nor the commencement of a suit to foreclose the Hadder mortgage against Shear would have prevented the running of the statute as against Grogan, unless he also should be made a party. The Hadder mortgage was due on the 3d of November, 1853, and a right of action to foreclose the mortgage against Grogan—whose mortgage bears date August 22, 1853 —accrued on that day. A suit against Shear would not prevent the statute from running upon a cause of action against Grogan, even if dependent upon the same instrument. The mortgage is not a conveyance under our system; it gives no estate in the land, or interest available otherwise than by suit of foreclosure, judgment and sale. In other words, it only creates a lien, a cause of action to be enforced against the land. Under the decisions in Lord v. Morris, and Low v. Allen, the mortgage is an instrument within the meaning of the Statute of Limitations, distinct from the instrument constituting the evidence of the debt; and under the nineteenth section of the
Obtaining a written acknowledgment of the indebtedness from Shear, or commencing suit against him would, therefore, have been of no avail to prevent the bar of the statute as to Grogan, without Grogan himself becoming a party to the renewal of the contract, or to the proceedings for foreclosure. Unless it was clearly the duty of Grogan, as agent of Lent, to commence suit against himself to foreclose the Hadder mortgage, there was no such fraud on his part as would preclude him from availing himself of the defense set up. Undoubtedly, if he undertook the trust and assumed the duty of enforcing the demand against himself, or even generally, and the plaintiff relied on him to do it, he was bound to execute the trust in good faith. But the Court has not found, and in our opinion the evidence would not justify a finding, as a fact, that he assumed this duty, or that plaintiff relied on him to enforce collection at all, either as against Shear or himself, or that there was any fraud. We are not satisfied, from the evidence, which is all in the record, that the discretion was left with Grogan. To our minds, the contrary is the more reason
The case of McCarthy v. White was not decided till after the judgment was entered in this case, consequently the Judge who tried it did not have that decision before him.
The judgment must be reversed, but that the question as to fraudulent neglect of duty on the part of Grogan may be more fully investigated, we think there should be a new trial—and it is so ordered.
Mr. Justice Shatter, having been of counsel, did not participate in the decision of this case.