Wormouth v. Hatch

By the Court, Shafter, J.: In foreclosure. It is charged in the complaint that one Pangburn and wife executed on the 29th of February, 1860, a mortgage to the plaintiff to secure Pangburn’s note of that date for the sum of three thousand eight hundred dollars, with interest, payable to the plaintiff or order in six months after date. That the title to the land passed through a series of conveyances from Pangburn to the defendants, the title vesting in them on the 17th of November, 1864, one and one half months after the note was barred. Should it be considered that this Pangburn mortgage is the one for the foreclosure of which the action is brought, the action cannot be maintained, for not only is the Statute of Limitations specially pleaded, but the fact that the mortgage note was outlawed at the commencement of the action is apparent on the face of the complaint. There is no averment that the note was ever renewed by Pangburn, who alone could renew it by legal possibility, nor is there any other fact averred bringing the securities within any exception of the statute. Therefore, should the plaintiff’s case, as presented in the complaint, be considered as based upon those securities, it is obvious that on the pleadings, and it was on them the case was submitted, judgment was properly entered for the defendants. But we consider that the action is not based upon the [127] Patigbum note and mortgage. Those securities are stated in the complaint as matters forming a part of the history of a general transaction rather than as matters of essential averment. The defendants are not connected with the note, collaterally even, by an allegation that they undertook to pay it as the debt of another. On the contrary, the obligation with which it is sought to affect them personally is an alleged promise given by them to W. and A. Elder, of whom they bought the land, that they would pay to the plaintiff a portion of the purchase money equal to the amount due or to grow due upon the Pangburn note. Such promise, if given, was not an undertaking on the part of the defendants to pay the note of Pangburn, but a new and original promise by them to the Elders to pay their own debt to them by paying a certain amount of money to the plaintiff. If such promise was in fact given, the plaintiff could sue upon it as the party beneficially interested. (Prac. Act, Sec. 4; Baker v. Bartol, 7 Cal. 551.) To this contract Pangburn was an entire stranger. His mortgage had no relation to it, nor had his note, except as the amount due upon it was made the measure of the sum to be paid by the defendants to the plaintiff in part liquidation of their private indebtedness to the Elders. Hor did that note enter into the consideration of the defendants’ undertaking; that consideration lay altogether in the sale and conveyance of the lands by the Elders to the defendants. After alleging the new and original promise of the defendants to their immediate grantors, it is averred that it was further agreed by the defendants that the Pangburn mortgage should remain a lien upon the premises as security for the defendants’ promise. If this is not the case intended to be made, then it must be' upon the Pangburn note and mortgage, already considered and disposed of. But under this second aspect, the vital averments are the promise of the defendants to the Elders, binding themselves personally, and the agreement subjecting the land to a lien as collateral to that promise. Both averments were denied. The burden of [128] proof was on the plaintiff, and he submitted his ease without putting in any evidence on the points so put in issue. It is suggested in argument that the complaint may be considered as averring that the lands were conveyed by the Elders to the defendants in trust that they would pay a certain portion of the purchase money to the plaintiff. Passing the question of whether any such construction can be claimed for the complaint, it is apparent that the trust cannot be wrought out except by putting to use the original agreement of the defendants in its bearing upon themselves in personam and upon the land in rem. But that agreement having been put in issue in both of its branches, it behooved the plaintiff to prove it in both. He proved it in neither. It is said that the complaint charges that the defendants took the land “ subject to the mortgage.” But the failure to deny the averment cannot avail the plaintiff. The averment is but a conclusion of law—drawn by the pleader—and apparently from the previous averment that the mortgage was duly recorded on the day it bears date. But at all events the averment is but a conclusion of law, and the defendants might safely omit to traverse it. Further, the allegations that the defendants paid interest for a time to the plaintiff on the Pangburn note by checks drawn therefor, and that they have always admitted their liability to pay it and the principal also, and that the defendants indorsed the payments of interest upon the note and took receipts therefor and made entries in their books of such payments, are at the most but evidence to prove the original undertakings of the defendants upon which the action is based; and as averments of evidence and not of facts, the defendants were not obliged to respond to them. (Moore v. Murdock, 26 Cal. 515; Canfield v. Tobias, 21 Cal. 349; Racouillat v. Rene, 32 Cal. 450.) But should it be considered that these averments bear -upon the Statute of Limitations relied upon as a defence to the action in the first aspect under which we have treated it, they are all mere evidence of the statute avoidance of the bar, except the allegation that “ the defend [129] ants have always admitted their liability to pay the principal and interest due on the [Pangburn] note and mortgage.” This allegation might, perhaps, suffice to remove the bar, did it not appear affirmatively on the face of the complaint that the defendants were never in fact liable upon the note. They did not make it, they never indorsed it, they never guaranteed it, nor promised collaterally to pay it. The only liability of the defendants which the complaint discloses springs from the original promise to the Elders, and all other grounds are necessarily excluded. Furthermore, it is obvious that the alleged admission by the defendants of a liability on the Pangburn note, goes very clearly to an assumption by them of a promise made by another, rather than to the renewal of one made by themselves, as previously argued. Judgment affirmed. Mr. Justice Rhodes did not express an opinion.