Sawtelle v. Muncy

Searls, C. Action to foreclose a mortgage executed by R. E. Muncy and Sadie E. Muncy, his wife, to secure the payment of a promissory note for $1,295, made by R. E. Muncy September 7, 1888, and payable on or before two years after date, with interest at ten per cent per annum. Defense, want of consideration, menace, and fraud. Defendants had judgment. Plaintiff appeals from the judgment, and supports his appeal by a bill of exceptions. The cause was tried by the court without a jury. The findings show that the note in suit was made without valuable, consideration; that the note and mortgage were procured by false representations on the part [437] of plaintiff and by menace, consisting of threats of a criminal prosecution against defendant B. E. Muncy, and of consequent injury to his character, and that the mortgage was executed by defendants, and each of them, under the influence of such menace, and would not otherwise have been made or executed. Appellant contends that the findings are not supported by the evidence, and specifies various particulars in which the evidence fails to support the several findings. For the sake of brevity we shall consider the objections together. The evidence may be epitomized as follows: Plaintiff introduced the note and mortgage, and rested. Defendant B, E. Muncy testified that he contracted to purchase the mortgaged premises in May, 1887, from one Moses Bollinger, and introduced the contract, consideration $652.51. When the last payment was made defendant had the deed made to his wife, Sadie E. Muncy. After defendant had contracted land rose in price, and he made a contract with one Townsend to sell him the same land at say $200 per acre; $200 or $300 was paid as a bonus, and the residue of say $7,500 was to be paid at a specified time, or the bonus to be forfeited. Townsend was in default for a year or so, and went into insolvency. About the date of the note and mortgage, plaintiff came to this defendant, and represented to him that he had received a note from Townsend for say $1,250, secured by an assignment of the Muncy contract for the sale of the land; that in conveying the land to his wife B. E. Muncy was guilty of a crime, and unless he fixed it up at once, and “ no fooling,” he would institute criminal proceedings against him. Defendant’s wife was in a delicate situation; he had recently come to the state and engaged in business, and, fearing the effect of a prosecution, was induced to give the note and mortgage. Defendant’s wife corroborated the evidence as to threats by plaintiff of a criminal prosecution, etc. [438] In rebuttal, the deposition of plaintiff, who resides in Oregon, was read in evidence, stating, in substance, that one N. G. Yoakum had contracted to purchase the land covered by the mortgage, and had contracted to sell it to defendant R. E. Muncy; that there was a balance of $1,295 due to Yoakum from Muncy; that Yoakum assigned his contract of purchase and his contract of sale to plaintiff, and that the sum due' from defendant constituted the consideration for the note in suit. In reply to this defendant R. E. Muncy testified that he never at any time had any dealings whatever with Yoakum, barely knew him; Yoakum never had any interest in the land that he knew of; that he never contracted with Yoakum in reference to this or any other land or thing; that, shortly after he bought the land of Bollinger, Yoakum disappeared, leaving his family, and has never been heard from since. The parties to the suit were the only witnesses. From the foregoing synopsis of the evidence it is quite apparent that there was evidence to support the findings, and that if the court below believed the defendants, as it evidently did, it could not well have found otherwise. According to their testimony there was no consideration whatever for the note, and hence it matters not whether the menace was sufficient to defeat the instrument. It seems strange, if plaintiff testified truthfully, that be did not fortify his position by some of the agreements of which he speaks, or by extrinsic evidence in support of his statement. It is sufficient, however, for us to say that the court was amply justified in its findings. 2. Appellant further contends that the court erred in refusing judgment against' defendant Sadie E. Muncy, after default. The record shows that the defendant Sadie E. Muncy was served with summons on the first day of November, 1892, and that her default for want of an answer was entered by the clerk November 22, 1892. December 7, 1892, both of the defendants demurred [439] to the complaint, which demurrer was overruled December 23d. January 20, 1893, defendants answered, and, after leave from the court so to do, they on the seventh day of March, 1894, filed an amendment to their answer. No objection seems to have been taken to the appearance of the wife defendant up to the close of plaintiff’s testimony, when judgment was asked against her, and the court took the motion under advisement and reserved its ruling. 1. We think the default was waived. In Hestres v. Clements, 21 Cal. 425, default was entered against a defendant, who afterward served and filed a demurrer, and acceptance of service of the demurrer was held a waiver of the default. Upon like principles, failing to raise objections to the various pleadings filed by the defaulting defendant and going to trial upon the merits should be regarded as a waiver of the default. 2. If it be conceded that the default was not waived, we are at a loss to see how plaintiff was injured. The defendant, Sadie E. Muncy, was not a party to the note in suit, and the only relief sought against her was the foreclosure of her interest in the land in satisfaction of plaintiff’s demand. Manifestly, the establishment of that demand against her codefendant was a predicate to such foreclosure, and, as plaintiff failed in establishing his demand against her co defend ant, he had no claim to satisfy out of the property of Sadie E. Muncy. The facts as found support the conclusions of law, and we recommend that the judgment be affirmed. Belcher, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Temple, J., Henshaw, J.