Watts v. Currie

KNIGHT, J.

The plaintiffs, Alfred G. and Louisa Watts, appeal from a judgment of dismissal based on an order sustaining a demurrer to the complaint without leave to amend.

The action was to foreclose a mortgage on real property given to secure the payment of a promissory note for $10,-000. The parties defendant were Jay E. and Helen N. Currie, the makers of the note and mortgage, and the respondents A. H. and Mettie C. Laursen who subsequently acquired

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the encumbered property and against whom appellants sought to recover a personal judgment for the full amount of the note and interest. The demurrer, which was sustained, was interposed by the respondents. The grounds thereof were that as to them the complaint did not state facts sufficient to constitute a cause of action, and that the cause of action was barred by subdivision 1 of section 337 of the Code of Civil Procedure. It appears from the complaint that the promissory note was dated July 25, 1928, and made payable three years after date. Consequently it fell due on July 25, 1931, and under the provisions of said code section the period of time to commence an action thereon expired on July 25, 1935; but the complaint was not filed until March 10, 1937. Appellants concede, therefore, “that the cause of action declared upon in the complaint would be barred by the code section just referred to, unless the time within which to file suit thereon has been extended by some other provision of law ’ ’; and in this regard appellants contend that ■the case is taken out of the operation of said code section by section 19 of the Moratorium Act of 1935 relating to debtors and guarantors (Stats. 1935, p. 1208; Act 5104a, Deering’s General Laws, 1935 Supp.), which provides that “Whenever the time within which an action may be commenced upon any obligation founded upon a written instrument secured by mortgage, . . . would expire by virtue of section 337 of the Code of Civil Procedure ... or any other provision of law, during the period commencing with the effective day of this act (June 21, 1935) and ending on February 1, 1937, such time is hereby extended so as not to expire until the first day of July, 1937.” However, section 20 of the same act declares that “Nothing contained in this act shall apply to or be deemed to affect: . . . (d) any mortgage or deed of trust securing an obligation in default at the time the owner or owners acquired title by purchase subsequent 'to the effective date of this act”; and here the complaint contained no allegations whatever showing when respondents acquired the encumbered property, or whether or not at the time it was acquired by them the mortgage was in default. The only allegation in the entire complaint tending to connect respondents at all with the ownership was the following: “X. That the plaintiffs are informed and believe and therefore allege that at the time the defendants A. H. Laursen and Mettie 0.-Laursen acquired title to the property described