Foristiere v. Alonge

THE COURT.

The defendant Paolo Alongé appeals from an adverse judgment in an action to quiet title, the real purpose of which was to cancel a mortgage standing of record against the property in defendant’s name, and which the plaintiff Foristiere claimed was barred by the statute of limitations at the time he acquired the property.

It appears that plaintiff’s predecessors in interest, Santo Catania and wife, during their ownership of the property, encumbered the same with two mortgages, the first of which was given to the Bank of Italy. The second ’ was given to the defendant Alongé to secure the payment of a note for $2,000, both the note and mortgage being made payable on February 5, 1921, and the mortgage being recorded on February 10, 1920. The mortgage debt was never paid, and consequently the mortgage was never released or satisfied of record. Several months prior to the running of the statute of limitations against Alongé’s mortgage the Bank of Italy brought suit to foreclose its. mortgage, Catania, his wife, and Alongé being made parties

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to that suit. In September, 1924, which was approximately five months before the running of the statute against the Alongé mortgage, Catania and his wife answered the foreclosure complaint by admitting the allegations thereof, and added a cross-complaint which was verified by Catania and was served personally on Alongé before filing. Alongé now claims that the contents of this cross-complaint constituted a statutory acknowledgment of the debt (Code Civ. Proc., sec. 360), which operated to extend the period of the statute of limitations beyond the date on which plaintiff acquired the property. It further appears that the cross-complaint was later dismissed by the court on motion of the Bank of Italy and on October 21, 1925, a decree of foreclosure was entered and the property sold at commissioner’s sale to the Bank of Italy; that during the pendency of the foreclosure action Mrs. Catania conveyed her interest in the property by quitclaim deed to her husband and on March 1, 1926, before the period of time allowed by law for the redemption of the property had expired, Foristiere acquired the property from Catania by quitclaim deed. Two weeks later he commenced this suit to quiet title, and on September 4, 1926, Catania redeemed the property from the foreclosure sale by paying to the commissioner the amount due the Bank of Italy. The evidence further shows that plaintiff knew of the existence of Alongé’s unpaid mortgage at the time he acquired the property. The cross-complaint reads as follows: “Comes now the above named defendants, Santo Catania and Elizabetta Catania, his wife, and for a cross-complaint against the defendants Paolo Alongé and John Doe and Mary Roe and Annie Roe, allege and state that on or about the 1st day of March, 1920, these cross-complainants executed and delivered to the said Paolo Alongé and others, their said mortgage on the real estate' mentioned in Plaintiff's complaint, to wit: Lots 31 and 32 in block 14 of the Town, now city of Fresno, California, as per map thereof, on file, to secure the payment of $2,000 principal and interest thereon at the rate of 7 per cent, until paid. That these cross-complainants have paid to the said Paolo Alongé the sum of $675.00, which should be applied upon said mortgage obligation, and the said Paolo Alongé refuses so to do. These cross-complainants have heretofore offered to pay the