Fleury v. Ramacciotti

LANGDON, J.

This action was brought to foreclose a mortgage. The court rendered a decree of foreclosure, but denied a deficiency judgment, and plaintiff appealed.

[661]

On October 1, 1925, defendants executed a note and mortgage to Leonide C. Auzerais, in the sum of $6,000, payable in two years. The payee died in 1930, and Norbert C. Babin, the executor of the payee’s estate, inadvertently failed to enforce the obligation, with the result that the statute of limitations ran against it on October 1, 1931. Babin was an intimate friend and business associate of defendant Ramacciotti, and took the matter up with him, explaining the difficult situation in which he, Babin, was placed. Ramaeciotti states that at this time he agreed to help Babin, offering to deed the property to the estate, or to permit foreclosure, provided that no deficiency judgment should be had against him. Thereupon, at Babin’s request, Ramaeciotti signed a document on October 10, 1931, predated as of September 15, 1931, in which he waived the defense of the statute of limitations in consideration of Babin’s promise not to bring action on the note before April 1, 1932. After this period had elapsed, and on June 15, 1932, Ramaeciotti executed a thirty-day renewal note and mortgage predated as of April 1, 1932, and received a surrender of the old note.

The present action on the new note was commenced on April 26, 1933. Ramaeciotti defaulted. In October, 1933, Babin died, and plaintiff Fleury was substituted as administratrix with the will annexed. After Babin’s death irregularities on his part were discovered. Ramaeciotti then investigated, found that a decree of foreclosure and a deficiency judgment had been entered, and proceeded to have the default set aside and answer filed. The answer alleged that the understanding of the parties was that the new note should be so drawn as to prevent any deficiency judgment against the mortgagor, and that in reliance upon Babin’s representation that it was so drawn, Ramaeciotti had signed it without reading it. The trial court so found, and concluded that a deficiency judgment was not proper.

Although the evidence in support of these findings is largely the testimony of defendant Ramaeciotti as to conversations between himself and Babin, it was sufficient, if believed by the trial court, to sustain the judgment. Moreover, the circumstances tend to establish defendant’s version of the transaction. The statute of limitations had run on the original note, and there is no suggestion that it had been tolled for any reason. Notwithstanding the outlawry of the note, however, we find Ramaeciotti signing a waiver, and per