Schwartz v. Edmunds

PULLEN, P. J.

Prom a judgment of foreclosure this appeal is taken. The action was commenced April 13, 1935, against Edgar C. Edmunds, as executor of the estate of Mary Edmunds, deceased, for the foreclosure of a mortgage dated January 18, 1928, given to secure the repayment of a promissory note of even date therewith.

Mary Edmunds died December 7, 1933, and on November 21, 1934, letters testamentary were issued to appellant herein. In the complaint it is alleged that on the 14th day of January, 1931, at the request of the said Mary Edmunds, plaintiff herein executed an extension of the maturity of said note and mortgage to January 18, 1933, which extension was duly acknowledged but not recorded until January 7, 1935, some thirteen months after the death of Mrs. Edmunds. The answer avers this fact and alleges that she did not consent to any extension, and further that said extension was not delivered to Mary Edmunds during her lifetime, and as a' separate defense set up the statute of limitations. Findings were signed in accordance with the allegations of the complaint and a decree entered directing the sale of the mortgaged property to satisfy the principal and interest of the note,

[532]

together with $22 expended under the terms of the mortgage for an abstract of title, and $160 as attorney fees.

It is the first contention of appellant that the extension agreement was invalid and inoperative because not signed by the mortgagor, and therefore the action was barred by the statute of limitations, citing section 2922 of'the Civil Code, which provides that a mortgage can be created, renewed or extended only by a writing executed with the same formalities as required in the case of a grant of real property, and citing also section 360 of the Code of Civil Procedure to the effect no acknowledgment or promise is sufficient evidence of a continuing contract unless the same is- contained in some writing signed by the party to be charged thereby.

Also as a circumstance contradicting execution of the extension, appellant calls attention to the fact that the extension agreement was not recorded until some thirteen months after the death of Mrs. Edmunds. That fact alone, of course, would not establish the contention of appellant.