63 P. 482 | Cal. | 1901
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *328 The appellant, Lena B. Mattern, executed to the respondent a mortgage bearing date March 1, 1895, upon certain land in the county of Los Angeles, to secure payment of the sum of three thousand five hundred dollars, according to the terms of a promissory note therefor executed by her to the plaintiff at the same time, with certain coupons for interest therein specified and described. The mortgage was recorded March 18, 1895. In August, 1897, the mortgagee executed, at the request of Mrs. Mattern, a release of a portion of the mortgaged land, and at the same time, in consideration thereof, the appellant Bechtel executed to the respondent a mortgage upon certain other property to secure the payment of the note executed by Mrs. Mattern. The release bears date June 24, 1897, and the mortgage of *330 Bechtel bears date August 2, 1897, but each instrument was delivered and recorded August 9, 1897. Mrs. Mattern having failed to make the payments as agreed by her, the present action was brought for the foreclosure of her mortgage, the plaintiff also setting forth in its complaint the execution by Bechtel of his mortgage to secure the same obligation, and praying for a sale of the land described in each mortgage. Answers to the complaint were filed on behalf of each of the appellants, and the cause was tried by the court and judgment rendered in favor of the plaintiff directing a sale of the property described in the Mattern mortgage, and that, if the proceeds thereof should be insufficient to satisfy the amount of the plaintiff's claim, the property described in the Bechtel mortgage should then be sold, and if then there should be a deficiency judgment therefor should be docketed against Mrs. Mattern. From this judgment, and from an order denying them a new trial, Mrs. Mattern and Bechtel have appealed.
Each of the appellants demurred to the complaint upon the ground of misjoinder of causes of action, uncertainty, and want of facts to constitute a cause of action. The demurrers were chiefly based upon the theory that two distinct causes of action are set forth in the complaint — one against Mrs. Mattern and one against Bechtel; and the demurrers specified several objections to portions of the complaint which are therein styled as counts, but which are treated by the demurrants as distinct causes of action. The court properly overruled these demurrers.
Although one portion of the complaint is entitled therein "First Count," and another portion "Second Count," the portions so entitled do not purport to set forth separate causes of action, but to state the facts by which the defendants Mattern and Bechtel are respectively related to the plaintiff's cause of action. A complaint, while setting forth a single cause of action, may at the same time ask for different relief from different defendants, according as they are connected with this cause of action, and its character is to be determined from its contents rather than from a misnomer on the part of the pleader. The averment that the mortgages referred to in the different counts were given as security for the payment of the same promissory note, and that this note which is set *331
forth in each of the counts is the same note, indicates with sufficient clearness that only one cause of action is set forth in the complaint. Under the averment that the Bechtel mortgage was executed as additional security for the payment by Mrs. Mattern of the notes secured by her mortgage, Bechtel was properly made a defendant for the purpose of securing to the plaintiff, according to the terms of its mortgage, any deficiency that might arise upon the forclosure of the Mattern mortgage. (See Hall v. Arnott,
Neither is the mortgage invalidated because the instrument set forth in the Mattern mortgage, to which it refers, is not strictly a promissory note within the definition of the Civil Code. Having executed his mortgage as security for the payment of an instrument, "according to its terms," which is set forth in a public record, he is presumed to have known its character, and will not be relieved from his obligation because he has styled it a promissory note. As the complaint sets forth at length the instrument for which the Mattern mortgage was given, its designation as a promissory note is immaterial. That instrument expressly provides for the payment of the interest coupons which are therein described, and no uncertainty is created by subsequently setting forth at length the form of these coupons.
The objection to the averment in the complaint in reference to the item of twenty-nine dollars and fifty-seven cents advanced for the preservation of the Mattern property needs no consideration, since no claim therefor was made by the plaintiff at the trial, and the item is not included in the judgment.
The defendant Bechtel alleged in his answer that the mortgage executed by him was without any consideration, and at the trial he gave testimony to the same effect. Aside from the consideration which is presumed from a written instrument, *332 a sufficient consideration was shown for the execution of his mortgage. It was shown that he had executed it at the request of Mrs. Mattern, and that prior to its execution Mrs. Mattern being desirous of effecting an exchange of a portion of the mortgaged premises for other property, a contract for that purpose was prepared by him; that the plaintiff agreed to release this portion of the premises from the lien of her mortgage upon the condition that Bechtel would make this mortgage; that he executed the mortgage at the request of Mrs. Mattern; that the mortgage thus made by him, together with the release by the plaintiff, were deposited in escrow until it was shown to the satisfaction of the plaintiff that Bechtel's property was unencumbered, and that the two instruments were placed of record at the same time. The contention that this evidence was outside of the pleadings was properly overruled. The evidence was admissible in rebuttal of Bechtel's testimony that he had executed his mortgage without any consideration. The further objection that by introducing the release of a portion of the mortgaged premises Bechtel was absolved from liability upon his mortgage is without merit, since it appeared that the mortgage was given for the purpose of procuring the release, and was a part of the same transaction, and that this transaction was conducted in part by Bechtel himself, and was carried into effect with the knowledge and consent of all the parties interested. As the release was given at the request of Mrs. Mattern, her objection that the action is for a foreclosure of only a portion of the property originally mortgaged is entitled to no consideration.
The agreement by Trexler to guarantee the obligation of Mrs. Mattern was not available as a defense to the plaintiff's right to foreclose the mortgage given by Bechtel. Neither was the conveyance of the mortgaged premises to him from Mattern available as a defense in the action. This conveyance was not of record at the commencement of the action, and although bearing date prior thereto, is averred by Bechtel in his answer to have been delivered to him and recorded June 9, 1898, subsequent to the commencement of the action.
Many other objections to rulings of the court in receiving or excluding evidence are presented by the appellants in their *333
brief, as well as to the action of the court in the trial and determination of the cause, but are not of such a nature as to demand extended consideration. The objection that the court erred in adjudging the attorney's fee allowed to the plaintiff to be a lien upon the land of Mrs. Mattern, thereby creating a greater deficiency to be enforced out of Bechtel's land, is not sustained by the record. The court finds the amount due upon the promissory note for principal and interest thereof, and declares that that amount is a lien upon the lands described in her mortgage and in its decree directs a sale of sufficient of the land "to raise the amount due unto the plaintiff for the principal and interest and costs of this suit and the expenses of sale." The court does not find or decree that the attorney's fees allowed by it are a lien upon the land of Mrs. Mattern, or direct the sale of any property in satisfaction thereof. The court was authorized to fix the amount of the attorneys' fees without receiving any evidence upon the subject. (Clancy v. Plover,
The judgment and order are affirmed.
Van Dyke, J., and Garoutte, J., concurred.
Hearing in Bank denied.