Graham v. Durnbaugh

SHAW, J.

As appears from the complaints in both cases, the actions are founded upon the following facts: On August 31, 1909, plaintiff made and delivered his promissory note, due three years from date, to one Cox, together with a mortgage upon certain real estate to secure payment of the same. On January 21, 1911, he conveyed the real estate to the defendant Durnbaugh by deed, wherein the grantee, as part of the consideration therefor, assumed and agreed to pay the amount of said indebtedness so secured by mortgage. On December 23, 1911, Durnbaugh conveyed the property to D. W. Honn, with a like provision in the deed whereby Honn assumed and agreed, as part of the consideration therefor, to pay the debt secured by the mortgage; and on May 29, 1912, Honn conveyed to H. 0. Kaiser upon a like assumption of obligation, though not expressed in the deed, for payment of said note and mortgage. On March 24, 1916, default having been made in the payment of the note, and Kaiser holding the legal title to the property, Cox as mortgagee instituted a suit to foreclose the mortgage, making Graham, the plaintiff herein, and Kaiser, the legal owner of the property, sole defendants therein. On July 5, 1916, the property was sold under a decree and a return made of a deficiency of $956.30, which, in accordance with plaintiff’s demand in said action, was entered against Graham only. Thereafter, on October 2, 1916, Graham paid the.deficiency judgment, and on November 1, 1916, instituted action No. 2443 to recover the same. While Honn and Kaiser were joined as defendants therein, no service was had upon or appearance made by them; hence on the appeal in No. 2443 we are not concerned with any ruling of the court other than as between plaintiff and defendant Durnbaugh,

[484]

Upon these facts the court sustained a demurrer interposed by Durnbaugh upon the ground that the cause of action was barred by the statute of limitations, and plaintiff declining to amend, judgment followed for defendant, from which plaintiff prosecutes this appeal.

Thereafter, plaintiff, on April 11, 1917, upon the same cause of action, by a complaint in like form, sued the same parties in the superior court of Los Angeles County, in which all of the defendants appeared and interposed demurrers upon the ground that the complaint did not state a cause of action and that the action was barred by the statute of limitations. All of the demurrers were, by a general order of the court, sustained, and plaintiff declining to amend, judgment followed in accordance with the ruling, from which plaintiff has prosecuted an appeal.