216 P. 1003 | Cal. | 1923
The plaintiff brought this action to quiet title to certain real property. The defendant answered and filed a cross-complaint setting up an unpaid note and mortgage executed by the plaintiff's grantor, who were made cross-defendants. On its face the note was barred by the statute of limitations, but the defendant alleged that the makers thereof had, at various times, "acknowledged to this defendant their certain indebtedness to her and promised to pay the same, which said acknowledgments and promises were contained in several writings signed by said cross-defendants." She prayed for foreclosure of the mortgage and for deficiency judgment against the makers of the note. Judgment was entered for the plaintiff, and the defendant has appealed.
The only issue raised by the pleadings and tried in the court below relates to the application of section
The evidence is uncontradicted. On the ninth day of April, 1914, the cross-defendants, Leroy H. and Nani A. Arnold, executed and delivered to the appellant, Mrs. Gonzalez, a certain promissory note for the sum of five thousand dollars, bearing date on that day, and due three years after date, with interest thereon at the rate of eight per cent per annum, payable quarterly. As security for the payment of such note they executed a mortgage on the real *428 property described in the complaint, the lien of which plaintiff seeks to remove in this action. Mrs. Gonzalez placed the note and mortgage for collection with the Southern Trust and Commerce Bank of San Diego, which institution, it is admitted, acted as her agent in dealing with Arnold during the entire transaction. Arnold testified that he kept track of the quarterly interest payments through regular interest notices sent to him by the bank just shortly prior to the payments becoming due. He thereupon wrote his check to the bank for the exact amount of quarterly interest due, one hundred dollars, and "inclosed the notice in an envelope with the check and mailed it to the bank; that was the general procedure"; or he took the notice and check in person to the bank. He continued this practice until some time in the year 1921. On one occasion, on October 13, 1917, not having received the interest notice, he wrote the Southern Trust and Commerce Bank of San Diego as follows:
"I have received no notice from you regarding interest on my note to Mrs. Maguil Gonzalez for $5000.00 which I believe was due Oct. 9, 1917.
"I have always received a notice from you and paid the interest at your bank.
"I enclose check for the amount, $100.00. If you still have the note please apply it on same if not please return it to me and inform me if possible to whom it is to be paid."
No other writings relating to the matter were ever signed by either Arnold or his wife, and no other acknowledgments or references to the indebtedness appear to have been contained in any writings that passed between the parties connected with the transaction. In January, 1922, the Arnolds transferred the mortgaged property to the plaintiff, who immediately brought the action against Mrs. Gonzalez to quiet title to the property. The foregoing facts were established at the trial, but when the note and mortgage were offered in evidence by the cross-complainant, the trial court sustained an objection that the cause of action was barred by the statute of limitations on April 9, 1921. The judgment is an affirmance of that contention.
When the plaintiff bought the property and instituted this suit the records showed that the lien of the mortgage had become extinguished. (Civ. Code, sec.
[1] The checks, by themselves, do not meet the requirements of section
Two pertinent facts in the Clunin case differentiate it from the case at bar. There the checks were separated from the stubs to which they were originally attached, and on which appear the memoranda of the purpose for which they were executed; and they were not accompanied by any letter or other writing. The notations on the stubs were not in any manner communicated to the holder of the note. None of the checks was for the exact amount of interest due, but all included sums for other purposes.
[2] It is well established that the code section does not prescribe any form in which an acknowledgment or promise sufficient to lift the ban of the statute of limitations shall be made. It is sufficient if it shows the writer treats the indebtedness as subsisting and one which the debtor is liable and willing to pay. From this acknowledgment the law implies the promise to pay. (Concannon v. Smith,
[3] Parol testimony was properly admitted to show the circumstances under which the instruments relied upon were executed, how the parties acted with reference to them after they were executed, and what they did with them. It then remained to be determined what was the effect of the writings when considered together. (Flegel v. Dowling,
It does not appear that the checks signed by Arnold and the interest notices from the bank were pinned together or in any way fastened to each other. But this was immaterial, for, in order to reach the bank when mailed, they were inclosed in an envelope, which so connected the two that, under all the circumstances, they may be taken together in each instance as one memorandum. (Pearce v. Gardner, 1 Q. B. Div. [1897] 688.) *434
The letter of October 13, 1917, written by Arnold to the bank, considered together with the check for the interest then due, which accompanied it, extended the statute of limitations on the note, as to him, four years from that time, or until October 13, 1921. This action was not commenced until after that date. The last of the quarterly checks was dated January 12, 1921. It was, therefore, necessary for the appellant to fully establish the existence of a sufficient acknowledgment or promise to take the case out of the operation of the statute of limitations. It was error to exclude the evidence by which appellant sought to establish the facts. Without such record the trial court was unable to fully determine whether, as a matter of law (Concannon v. Smith, supra), a new and existing promise or acknowledgment was raised which took the case out of the operation of the statute. If it finds there was such an acknowledgment, it will also be necessary for it to determine whether or not the admission or promise by Leroy H. Arnold, one of the joint obligors, operated to suspend the running of the statute as against his wife, Nani A. Arnold. [4] As a general statement, the promise of one of several joint obligors cannot avail to revive as against the others a cause of action barred by limitation, or to suspend the running of the statute. (State Loan etc. Co. v. Cochran,
The judgment is reversed.
Myers, J., Lawlor, J., Lennon, J., Seawell, J., Kerrigan, J., and Wilbur, C. J., concurred. *435