Goldwater v. Hibernia Savings & Loan Society

This is an appeal by defendant from a judgment rendered in favor of plaintiff, after an order overruling defendant's demurrer to plaintiff's amended complaint and sustaining plaintiff's demurrers to defendant's answer and cross-complaint.

Plaintiff by his complaint sought a decree restraining defendant from the threatened sale of land of plaintiff under a power of sale, contained in a mortgage, executed by the predecessor in interest of plaintiff, one Julia Hinz, upon her homestead, to secure the sum of $3,000 and interest.

As appears from the complaint, Julia Hinz had deceased before the attempted execution of the power, and the debt and note had also become barred by the statute of limitations, which bar is pleaded and set up both in the complaint and in the demurrer to defendant's answer and cross-complaint.

The debt, as appears from the pleadings, has never been paid.

The answer and cross-complaint set up the facts in greater detail than in the complaint, but it is perfectly clear from each and all of the pleadings that the mortgagor had deceased long before the attempted execution of the power, and that, likewise, any action upon the debt, note and mortgage had become barred by the statute of limitations.

An attempt was made to foreclose the mortgage by suit instituted by defendant against the executor of the last will of the mortgagor, which failed for the reasons set forth in the decision on appeal to this court. (Hibernia S. L. Soc. v.Laidlaw, 4 Cal.App. 626, [88 P. 730].)

The points of law presented by the demurrer may be considered under three heads, and are so discussed in a very able manner by counsel. *Page 513

1. Is a power of sale contained in a mortgage given to secure the payment of a sum of money, owing by the mortgagor to the mortgagee, revoked by the death of the mortgagor?

2. Does the power of sale contained in the mortgage survive the barring by the statute of any action upon the debt, note and mortgage?

3. If it be determined that the power of sale is no longer existent, for either of the reasons above suggested, may the mortgagor or her successor in interest invoke the aid of a court of equity to restrain a threatened sale under the power, without tendering payment of the outlawed, but unpaid, debt?

Both appellant and respondent have discussed these three questions elaborately and with much ability.