California Title Insurance & Trust Co. v. Miller

HALL, J.

This is an appeal by plaintiff from a judgment in favor of defendants, and comes here upon the judgment-roll.

On April 15, 1896, Edwin A. McDonald executed a mortgage on real estate to Thomas W. Sweeny to secure the payment of his promissory note to Sweeny, payable April 15, 1897. On April 27, 1896, Edwin A. McDonald, the mortgagor, for love and affection, deeded the mortgaged property to his mother, Letitia McDonald, one of the defendants. The deed was in terms made subject to the mortgage, and was properly acknowledged and duly recorded May 4, 1896. McDonald, the mortgagor, died March 18, 1898, but there was no administration on his estate until March 27, 1901, when letters of administration were issued to P. J. Muller, one of the defendants. Sweeny, the mortgagee, died January 24, 1900, and on- February 9, 1900, letters testamentary were issued to the plaintiff. This action to foreclose the mortgage was commenced against the administrator of the deceased

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mortgagor and the grantee of the mortgagor May 29, 1901, four years and six weeks after the note became due, and more than five years after the deed to Mrs. McDonald had been made and recorded, but within about two months after the issuing of letters of administration upon the estate of the deceased mortgagor. Mrs. McDonald, the grantee of the mortgagor, pleaded in her answer that the cause of action was barred by section 337, Code of Civil Procedure. The court found the facts as above set forth, and found both as a fact and as a conclusion of law that the action was barred by section 337, Code of Civil Procedure, and rendered judgment for defendants.

Appellant, in its opening brief, concedes that if the trial court was right in holding that the mortgage could not be foreclosed as against the grantee of the mortgagor, no recovery could be had against the administrator of the deceased mortgagor. We therefore shall consider the only question presented, to wit, Was the action barred as against the grantee of the deceased mortgagor? It is well settled in this state that the grantee of a mortgagor may avail himself of the bar of the statute, although the running of the statute against the mortgagor has been interrupted by his absence from the state, and the like.

(Wood