Fielding v. Iler

HAVEN, J.

Action for foreclosure of a mortgage given as security for the payment of a promissory note dated Decern

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ber 21, 1908, and payable three years after date. In July, 1909, the defendant Iler, maker of the note and mortgage, conveyed the mortgaged premises to the defendants Anderson, who are husband and wife. This conveyance contained the stipulation “that the same ivas made subject to said mortgage which the parties of the second part therein assumed and agreed to pay.” Thereupon the defendants Anderson entered into possession of the mortgaged premises, and paid interest upon the mortgage debt to the plaintiff from the summer of 1909 until September, 1915. About the middle of December, 1915, the plaintiff wrote the defendants Anderson, calling their attention to the fact that the time was drawing near for new papers to be made out and asked them “to make up a deed of trust instead of a mortgage.” Two days before the expiration of the statutory period of limitation on the original promissory note, the defendant, Josephine V. Anderson, wrote the following letter to plaintiff":

“Dec. 19, 1915.

“Tour note of December 11th at hand and I would like to have you continue the mortgage. In regards to taking out new papers for the same that will not be necessary as I had spoken to Mr. Adams in 1913 about that as the five years of the mortgage was up then and he informed me that you would agree to extend the payment of the same every two years and I still have the same paper so that if it is all the same to you I will be to see you on either the 27th or 28th of December, more likely the 27th. "With best wishes for a happy Xmas I remain

“Respectfully,

“Josephine V. Anderson."

About December 27, 1915, defendants Anderson called upon plaintiff and offered to pay interest on the mortgage debt, which plaintiff refused to accept.

This action was commenced May 10, 1916. The defendants filed a joint answer, in which they pleaded the provisions of section 337, subdivision 1, of the -Code of Civil Procedure, as a bar to the cause of action set forth in the complaint. The trial court sustained the plea of the statute of limitations in favor of the defendant Evelyn M. Iler, maker of the note, and judgment was entered in her favor, but overruled the plea as to both of the defendants Anderson, against whom