Cotcher v. Barton

SHAW, J.

Action to foreclose a mortgage. Judgment went for plaintiff, from which defendant appeals.

It appears that on November 18, 1908, the Security Investment Company of Redlands made and delivered to plaintiff its promissory note in the sum of $10,000, payable three years after said date and bearing interest at the rate specified therein, which interest by the terms of the note was payable quarterly. On the same date said Security Investment Company executed and delivered to plaintiff a mortgage on the real estate described therein to secure the payment of said note, which mortgage was, on the nineteenth day of November, 1908, duly recorded in the recorder’s office of San Bernardino County, wherein the real estate described was situated. Thereafter, on September 27, 1911, said Security Investment Company executed and delivered a grant deed, wherein no reference to the mortgage was made, conveying all its title to the property in question to defendant, who from thence up to August 18, 1915, at regular quarterly intervals paid to plaintiff the interest as called for by the terms of the note. No payments on account of accrued interest, however, were made subsequent to said last-mentioned date, nor were any payments ever at any time made on account of the principal of the note. The original complaint to foreclose the mortgage was filed on December 26, 1918, some seven years after the maturity of the note, which, according to its terms, became due and payable November 18, 1911. On January 27, 1919, an amended complaint was filed wherein,' in addition to the usual allegations found in complaints for the foreclosure of such liens, and for the purpose of meeting the bar of the statute of limitations, which otherwise might be invoked by

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demurrer upon such ground, it was alleged that defendant 31. M. Barton, on February 18, 1915, “acknowledged to the plaintiff the existence of said mortgage, and agreed to pay the same; and likewise on, to wit: May 17, 1915, and again on, to wit: August 18, 1915, said defendant acknowledged to the plaintiff the existence of said mortgage, and promised to pay the same. Said acknowledgments were contained in several writings signed by said defendant H. M. Barton”; all of which allegations were denied by defendant in his answer, in addition to which, as a defense to the cause of action, he alleged that the cause of action set up in the amended complaint was barred by the provisions of subdivision 1 of section 337, subdivision 4 of section 338 and by subdivision 1 of section 339, all of the Code of Civil Procedure. The court, upon the issue so joined by such allegations of the complaint and denial thereof, found: “That on February 18, 1915, May 17, 1915, and August 18, 1915, the defendant, II. M. Barton, acknowledged to the plaintiff the existence of plaintiff’s said mortgage, by writing letters on said dates, signed by defendant and addressed and mailed to plaintiff, Harriet W. Cotcher, and received by her, in each of which said letters defendant said that he inclosed check for $175 interest due on the mortgage on the Oxford Block, meaning the mortgage sued on in this action. That each of said letters contained a check for $175, signed by defendant, payable to plaintiff, and the same were received by plaintiff on or about said dates. That said letters and checks contained the only acknowledgment or promise to pay the note and mortgage sued on, made at any time by defendant.” Upon this probative finding and the evidence adduced in support thereof, the court, as an ultimate fact, found “that plaintiff’s cause of action is not barred by the provisions of subdivision 1 of section 337, or of subdivision 4 of section 338, or of subdivision 1 of section 339 of the Code of Civil Procedure.”