90 P. 203 | Cal. Ct. App. | 1907
This action was brought to foreclose a mortgage. There were over one hundred defendants. Judgment was rendered in favor of plaintiff for nearly $200,000, and for the sale of the property. The pleadings are numerous and quite voluminous, covering about four hundred and fifty pages of the transcript. Certain of the defendants, not including McCarthy, the maker of the note, moved for a new trial on a bill of exceptions. The motion was denied. They appeal from the order denying their motion for a new trial, and also from the judgment.
By appellants two points are urged for reversal. One relates to the sufficiency of the complaint and must therefore be considered on the appeal from the judgment. (Swift v.Occidental Min. etc. Co.,
There was a demurrer to the complaint, general and special. The special demurrer, however, was not addressed to the particular defect herein ably and vigorously assailed by appellants. The portion of the complaint which is the "storm-center" of the contention of the parties is as follows: "On or about the first day of February, 1894, pursuant to an order theretofore duly made by the said Superior Court in the matter of the estate of said Leland Stanford, deceased, the said Jane L. Stanford, as executrix of the last will and testament of Leland Stanford, deceased, for and in consideration of the sum of one hundred and twenty-one thousand and thirty and 36-100 dollars paid to her by this plaintiff on the said first day of February, 1894, executed and delivered to this plaintiff an instrument in writing, whereby she assigned to this plaintiff the said fourth promissory note, and all moneys due and to grow due thereon, and the said mortgage executed and delivered to the said Leland Stanford, on the 5th day of January, 1891, by the said James P. McCarthy, as aforesaid. Thereafter, to wit, on the same day, the said Jane L. Stanford, as such executrix, acknowledged the said assignment before Eugene W. Levy, a notary public in and for the city and county of San Francisco, so as to entitle the said assignment to be recorded, and thereafter, to wit, on the 13th day of February, 1894, the said assignment was recorded in the office of the County Recorder of the said city and county, in Liber 16 of Assignments of Mortgages, beginning at page 330. At the same time with the execution and delivery to this plaintiff by the said Jane L. Stanford of the said assignment, as aforesaid, she also endorsed and delivered to this plaintiff the said fourth promissory note, without recourse, and this plaintiff ever since then has been, and now is, the holder and owner thereof."
It is contended by appellants that the facts alleged do not show that the estate of Stanford ever parted with the title to the obligation, and hence that no cause of action is stated in behalf of plaintiff. The proposition is sound and will not be gainsaid that there must be some allegation sufficient, according *304 to the rules of pleading, to show title in plaintiff or else the general demurrer should have been sustained. The difficulty is in making an application of the elementary principles to the particular facts of the case.
To be more specific, appellants urge that "where title to a chose in action is deraigned through a transfer alleged to have been made by an executrix, the complaint must show: 1. A power of sale conferred by will, or by an order of sale; 2. A sale pursuant to the power; 3. A confirmation of sale." Assuming that the order of court to which reference is made in the complaint refers to the order of sale, then it follows, according to appellants' argument, that there is no allegation whatever of the order of confirmation and that therefore one of the essential links in the chain of title is lacking. Section
In Lindsay v. McInerney,
The scope of Stevens v. Bowers,
In Smith v. Dean, 19 Mo. 63, it is held that in an action upon a bond by an assignee, a general allegation that the plaintiff is the legal holder is insufficient. The court said: "The plaintiff must state facts that give him the title to the bond, when, upon its face, the title appears to be in another."
White v. Brown, 14 How. Pr. 282, is somewhat similar. It was an action upon a promissory note. The payee in the note was William Rork and the only allegation connecting the plaintiff with the obligation was that he was then the bona fide owner and holder of the said note. The court said: "The complaint in this action does not show any title in the plaintiff to the note set up in it, as an indorser, or a party to the note or any right as such to maintain an action upon it." Hence, the demurrer was sustained. The last two cases are more directly in point than some of the others, but the allegations of the complaint in each were manifestly not so comprehensive as in the case at bar.
In this connection it is contended that the allegation of the execution of the assignment by the executrix is not sufficient because such execution by the executrix in the absence of an order of confirmation conveys no title. This doctrine is clearly established and must follow from the provisions of said section
Again, it is urged that the allegations as to the order — admitting it to refer either to the order of sale or of confirmation — is utterly insufficient because it is not a positive averment, but at most presents the facts by way of recital or as a legal conclusion. Certain cases are cited to show the insufficiency of this method of disclosing a material fact. *306
In Christy v. Dana,
It is manifestly so, but that it was immaterial in that particular case is shown by the following declaration of the court: "It is evident the plaintiff was entitled to enforce his mortgage as against the land, notwithstanding the personalliability of Dana for the debt may have been barred by thedischarge."
In Wheeler v. West,
Appellants earnestly contend that this consideration injects into the case a false quantity, that the presumption if indulged is utterly without importance because nothing can aid a complaint which fails in a material and necessary averment. It is true that it is of no consequence whether such evidence was admitted without objection or not if there is an absolute failure, and no attempt to allege some material fact, but it is held by the authorities that it does become of moment when there is an imperfect exhibition in the complaint of such fact, which is the case here.
In Burkett v. Griffith,
In People v. Jones,
In the case of Knox v. Buckman Contracting Co.,
The case of Marsh v. Superior Court,
In Hill v. Haskin,
In Chase v. Evoy,
In Grant v. Sheerin,
From Alexander v. McDow,
And in City of Santa Barbara v. Eldred,
In Estate of Behrens,
There are many other cases to the same effect. Admittedly, none of the decisions cited — and they have all been examined — presents identically the same phraseology as we find in the complaint before us. But a fair consideration of the authorities, keeping in view that "the court must," as provided in section
To understand the significance of the other objection, the following facts must be observed: The complaint contains the usual allegation that certain defendants, including the appellants, *314 claim some right or interest in the property, but that it is subsequent and subordinate to plaintiff's lien. Appellants answered this allegation as follows: "Defendants admit that they have and claim, and that each of them has and claims, an interest in certain portions of the property described in the said complaint, but deny that their said interest, or that the interest of any of them, is subsequent or is subordinate or is subject to the lien of the said mortgage." The allegation of the indorsement and delivery of the promissory note contained in the complaint was denied in said answer as follows: "Defendants deny that on or about February 1st, 1894, or at any other time, or at all, Jane L. Stanford indorsed and delivered or indorsed or delivered to the said plaintiff the said fourth promissory note, described and set forth in paragraph 15 of the said complaint, and that the said plaintiff ever since has been and now is the owner and holder or owner or holder of said note." The answer further denies "that there is any sum or amount whatever now due, unpaid or owing upon the said promissory note."
By reason of the foregoing allegations and denials appellants claimed the right at the trial to introduce evidence of a novation, or, as it appears in the bill of exceptions: "That while plaintiff was putting in its case the defendants hereinafter named repeatedly endeavored upon cross-examination to introduce in evidence the agreement set out in the proposed amended answer hereinafter contained, but objection being made by plaintiff on the ground that said matter was notcross-examination, the same was ruled out. That after the close of plaintiff's case, said defendants hereinafter named proceeded to and did offer in evidence, without any objection, their respective chains of title and claims to, in or upon the property involved in this action." Thereupon said defendants offered in evidence the agreement set out in said proposed amended answer, which was offered, so counsel stated, "for the purpose of showing that said note had been supplemented, changed and modified and that the same is no longer a valid or existing obligation of any kind or character, that being a new and different agreement substituted in this suit." In response to a question by the court, counsel for appellants stated that the paper in question constituted an agreement of the parties in interest whereby the amount due is $121,000, instead of $112,500, as provided in the note upon which the suit was *315 brought, and that it was to bear a greater rate of interest and that the amount due was to be paid in two installments instead of one, etc. In other words, the instrument is one which shows a complete novation as to this promissory note. "First, as to the change in the amount of the note, and, second, as to the times of payment, and the payments, and the rate of interest which it shall bear, and as to the terms upon which this mortgage shall be released, and providing that the mortgage, as modified, shall stand as security for the new amount, and in the event of foreclosure interest shall be given at the rate indicated." Upon objection being made upon the ground that it was not addressed to any issue in the case, the court declined to admit the evidence, holding that it was not admissible under the pleadings, and should be specially pleaded. Subsequently appellants asked leave to file an amended answer setting up this agreement and alleging in appropriate phraseology that it was executed as a novation and also setting up the bar of the statute of limitations against the enforcement of this new obligation. The court sustained plaintiff's objections.
Appellant Henshaw then made application to file an amended answer setting out the same agreement as a novation and alleging that by virtue of the novation his own mortgage became a first lien upon the premises, and that any claim, lien or demand of the plaintiff was subsequent and subordinate thereto, and also "that on the 14th day of January, 1896, the defendant duly commenced an action in the Superior Court of the City and County of San Francisco against the plaintiff above named, and against the defendants, James P. McCarthy and William Fitzhugh, and others, for the purpose of foreclosing his aforesaid mortgage; that said action is still pending and undetermined." In support of the opposition to the application, counsel for plaintiff stated: "This is the first time that this instrument has been brought into this action. The answer of these defendants was filed on the 2d day of April, 1899. This action was begun on the 4th day of January, 1898. Their answer was filed more than four years ago. In the meantime, if there has been a novation of this original obligation by reason of the execution of this agreement, any cause of action stated in this amendment on that new obligation has become barred by the statute of limitations." Besides, it was contended that it was unconscionable on their part — never having apprised the plaintiff of it — to set up a *316
defense which would deprive plaintiff of its cause of action. The court, in sustaining the objection, stated: "Mr. Henshaw is not in privity with this contract, or with any of the parties to the contract. Whatever rights he acquired were acquired before this was executed. If a suit was brought upon this agreement and he was made a party, and he alleged that he had a mortgage prior to the making of the agreement, he would plead himself out of court. If the defense were allowed it would have the effect of making his mortgage previous to the plaintiff's, and it would defeat the rights of all of the defendants. Now, here is a party who has known of this agreement and has not pleaded it, and now to ask to plead it would have the effect of giving him a prior lien, and I think it would be an inequitable thing to do." It would seem that any judge would take the same view of it. It is true, as contended by counsel, that courts should be liberal in allowing amendments for the purpose of aiding and facilitating the trial of causes upon their merits. Ordinarily, an application to amend a pleading to present more fully or accurately a cause of action or a defense should be granted upon such terms as shall appear just. In Farmers' Nat.Gold Bank v. Stover,
But it is clearly established by the authorities that the appellate court will not reverse an order denying leave to amend except for abuse of discretion. As said in San JoaquinValley Bank v. Dodge,
Such amendments, as well observed, are allowed in the interests of justice and not simply to give the party a technical advantage. (Code Civ. Proc., sec. 473.)
In Cooke v. Spears,
In Page v. Williams,
In the case at bar the effect of allowing the amendment, if supported by the evidence, would have been to defeat plaintiff's claim, and the court was justified in treating it as an application to amend in order to plead the statute of limitations.
Appellants contend that "the idea of administering rules of pleading with a view of reaching an end different from that attained by the substantive law and thus working out an indefinable justice, is illogical and absurd." But the vice of the statement is in the implication that the degree and quality of justice are determined by the method adopted in its pursuit.
That there is a difference between legal and equitable rights and that a distinction is properly made between purely statutory and moral considerations in the enforcement of obligations and in the application of remedies, no one will probably *318 deny. If no such distinction exists the judges will have to recant many errors and our whole judicial system will need reconstruction.
Appellants invite us to a discussion of the phrase "furtherance of justice." Obviously it is "such justice as the law administers when correctly applied." (Stringer v. Davis,
Appellants seem to think that it is "in furtherance of justice" to promote their interest at whatever cost to someone else. They have apparently forgotten the qualification of the rule that amendments should be allowed in furtherance of justice when it can be done without prejudice to thesubstantial rights of others. Assuredly, after an action had been pending for five years, it was no abuse of discretion to refuse to allow an amendment and thereby preserve to plaintiff the right to enforce a just obligation to the amount of nearly $200,000, and to subject to the prior claim of plaintiff a mortgage executed subsequently, when the effect of granting the amendment might be to defeat plaintiff's claim altogether, and to give appellants an advantage which the evidence does not show they needed. The ability and industry of counsel for appellants compel admiration, but to uphold their contention, in our opinion, would be a travesty of justice rather than in furtherance thereof.
The judgment and order denying the motion for a new trial are affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 31, 1907. *319