Shartzer v. Love

40 Cal. 93 | Cal. | 1870

Erodes, C. J.,

delivered tbe opinion of tbe Court:

It is shown by tbe affidavits filed in tbis Court, tbat Harry Love died before tbe notice of appeal was filed. Tbe motion to dismiss tbe appeal as to bim must be granted. (Judson v. Love, 35 Cal. 463).

At tbe time wben tbe contract was made, upon wbicb tbe action is brought, Mary Love was tbe wife of Harry Love, and therefore, she is not personally liable on tbe contract, although it was signed by her; but it is tbe contract of Harry Love alone.

Tbe dismissal of tbe appeal as to Harry Love left tbe judgment in bis favor in full force. Tbe matter determined by tbe judgment, was tbat tbe facts stated in tbe complaint did not show tbat tbe money mentioned in tbe contract bad become due, wben tbe action was commenced. It is very apparent tbat an action cannot be maintained against Mary Love, to foreclose tbe mortgage, until tbe money mentioned in contract has become due; but tbat matter cannot be taken into consideration on tbe appeal as to her, for tbe reason tbat tbe questions in tbe case arise upon tbe demurrer to tbe complaint. Tbe question of tbe sufficiency of tbe complaint as to her does not depend, in any manner, upon tbe disposition of tbe cause as to her co-defendant.

Tbe complaint seems to have been drawn on tbe theory, tbat tbe survey of Mary Love’s claim was confirmed under tbe Act of Congress of June 14, 1860; and tbat as tbat Act permitted tbe parties to apply for, and file with tbe Commissioner of tbe General Land office, tbe survey and its confirmation, it was their duty to do so; and tbat as they failed to avail themselves of tbe provisions of tbat Act, tbe delay in issuing tbe patent was attributable to their default. But tbat Act was expressly repealed by tbe Act of July 1, 1864 (13 TJ. S. Stats, p. 332), and tbe latter Act took effect before tbe confirmation of tbe survey. No provision is made by *that Act for tbe transmission of tbe survey to tbe Land Department by tbe confirmee. Tbat duty was left with tbe Surveyor-General, and if there was any neglect or unnecessary delay in tbe performance of tbe duty, neither Mary Love nor her husband is responsible for it. Every act in tbe matter, from tbe confirmation of tbe survey to tbe issuing of tbe patent, is an official act; and tbe con-firmee cannot be regarded as in default because of tbe delay in issuing tbe patent. We are therefore of tbe opinion, that tbe complaint fails to show that tbe money mentioned in tbe contract bad become due.

Appeal as to Harry Love dismissed, and judgment as to Mary Love affirmed; and ordered that judgment be entered as of tbe 14th day of December, A. D. 1868.