Davis v. Davis

JAMES, J.

Defendants W. J. Davis and Ida R. Davis, on March 25, 1904, executed their promissory note payable to J. R. Thacker for the sum of $1,000 one year after date, and contemporaneously therewith gave a mortgage upon two certain lots of land at Santa Monica to secure the payment of said promissory note. On the twenty-fourth day of March, 1905, the mortgagee assigned the note and mortgage to plaintiff, who thereafter remained the owner of same. On the thirtieth day of June, 1910, the mortgagors entered into an agreement which was thereafter consummated, by the terms of which they exchanged the property so mortgaged with appellant Lula H. Plowman, the agreement of exchange containing this clause relative to the mortgage indebtedness referred to and existing against the property of defendants W. J. and Ida R. Davis: “Above property subject to a mortgage of one thousand dollars to b'e assumed .by owners of first piece. ’ ’

[799]

The Davises on their part assumed an encumbrance of $1,500, then existing against the property of Lula H. Plowman which they received in exchange for their own lots. This action was brought on September 22, 1910, to foreclose the mortgage given by the Davises to secure the payment of the $1,000 note, Lula H. Plowman and her husband, A. J. Plowman, being made defendants, and it being alleged in the complaint that on the thirtieth day of June, 1910, the date of the making of the agreement of exchange between the Davises and Lula H. Plowman, “the said defendants W. J. Davis, Ida R Davis, Lula II. Plowman and A. J. Plowman, in writing, acknowledged said note and mortgage and indebtedness, and assumed and agreed to pay the same.” Defendants Davis made no appearance in the action, and their default was regularly entered. Defendants Plowman appeared and, among other defenses, set up the plea that the note and mortgage debt was barred by the provisions of section 337 of the Code of Civil Procedure. The trial court made its findings generally in favor of plaintiff, and found that the agreement of exchange with the conditions hereinbefore mentioned, had been duly made between the parties, but found in favor of defendants Plowman on the plea of the statute of limitations. It will be noticed from the foregoing statement of facts that at the time the agreement of exchange was made between the Plowmans and Davises, the statute of limitations had already run against the mortgage debt of $1,000 owing by the Davises to Thomas Davis, the assignee of their mortgagee, and hence also the statute had completely run at the time this action was commenced. The case presents mainly the one question as to whether the Plowmans, having expressly assumed the mortgage indebtedness theretofore existing against the property which they received in exchange for their own, could, in an action brought to foreclose the mortgage, be allowed to defend on the ground that the statute of limitations had run against the debt. It very clearly appears that the assumption of the $1,000 mortgage debt by the Plowmans was a part of the consideration moving from them to the Davises in the exchange of properties; in other words, as a part of the purchase price, instead of paying $1,000 to the Davises in addition to the transfer of their real estate, they agreed to pay the debt then admitted to be owing by the Davises "to the plaintiff. The