Caffaro v. Romani

LANGDON, P. J.

This is an appeal by the defendant Albert Romani from a deficiency judgment against him in a suit to foreclose a mortgage upon certain real property in Alameda County. Romani borrowed money from the plaintiffs and as security executed his promissory note, dated April 16, 1913, and due in two years from date for $1,650, payable to plaintiffs. This note contained the following clause: “If this note is not paid at maturity it is.hereby renewed from year to year at the option of the holders until paid, and during such year the maker shall not have the right to pay the same.”

This note was secured by a mortgage upon real property, some of which was situated in the county of Sacramento and some of which was situated in the county of Alameda, California. The mortgage was duly recorded in both these counties. On May 17, 1913', the plaintiffs signed the following release upon the margin of the records of Sacramento County: “This mortgage is fully paid, satisfied and discharged, Louis Caffaro, Francesca Caffaro. Signed and acknowledged before me this 17th day of May, 1913. C. A. Root, County Recorder.” No release was recorded in the county of Alameda and the property situated therein was transferred to W. D. McKoy in March, 1917. McKoy was made a defendant herein, but has not appealed from the judgment of foreclosure, and so there is no question before us as to the right of plaintiffs to subject the property in Alameda County to the payment of the debt. The appeal concerns itself merely with the deficiency judgment against

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Eomani, who claims that as to him the debt is discharged and satisfied by the written release.

The appeal presents two questions. The first contention of appellant is that the action is barred by section 337 of the Code of Civil Procedure. This is true, unquestionably, unless the clause above quoted, automatically renewing the note from year to year, prevents the statute from running. The only case which the parties have been able to present to the court which involves a similar provision in a note is the ease of

Kleinsorge

v.

Kleinsorge,

133 Cal. 412 [65 Pac. 876]. In that case the validity and effect of the provision in question was not directly in issue, for the opinion states that it was conceded by appellant that it was competent for the parties to provide for a renewal of the note by its own terms. The court proceeds upon the assumption that a provision such as we have in the instant case automatically renewed the note from year to year, and, apparently, saw no objection to such provision or such effect, for the opinion states: “The note was dated August 1, 1896, and was drawn payable one year after date. It was by its terms renewed for 1897, 1898 and from August 1, 1899.” By analogy, the note in the instant case became due April 16, 1915, and was, by its terms, renewed for 1916, 1917, 1918, and 1919 and suit was brought upon it within four years from April 16, 1919.