Heeser v. Taylor

McLAUGHLIN, J.

This is an action to foreclose a mortgage on real property. The defendant demurred to the complaint upon the general ground that no cause of action was

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stated therein, and also on the special ground that the cause of action pleaded was barred by the provisions of sections 312 and 337 of the Code of Civil Procedure. The demurrer was overruled, and, defendant declining to answer, judgment of foreclosure was entered. From this judgment defendant* appeals.

The complaint stated a cause of action. The plaintiff expressly waived all recourse against any other property of the estate, and hence no presentation of his claim was necessary. (Code Civ. Proc., sec. 1500;

McGahey

v.

Forrest,

109 Cal. 67, [41 Pac. 817];

Visalia Savings Bank

v.

Curtis,

135 Cal. 352, [67 Pac. 329];

Weinrich

v.

Hensley,

121 Cal. 656, [54 Pac. 254].)

The principal question remaining relates to the defense of the statute of limitations. It appears from the complaint that the note and mortgage in suit were executed by Thomas Boyle to L. E. White, the assignor of plaintiff, on September 19, 1878. The note was for the sum of three hundred and sixty dollars, bearing interest at the rate of one and one half per cent per month from date, and was payable one year after its date. Thomas Boyle died on December 16, 1878, but no administration of his estate was had until February 3, 1904, when letters of administration were issued to the defendant. The mortgage and the assignment thereof were duly recorded. It is apparent from the foregoing statement that the note was not due at the time of Boyle’s death, and upon this fact rests appellant’s contention that the cause of action was barred when this action was commenced.