Weinberger v. Weidman

TEMPLE, J.

This is an action to foreclose a mortgage given to secure the payment of a promissory note dated March 2,1892, due one year from date. The action was commenced September 6, 1898, about eighteen months after the right of action was barred, unless there was a new promise or acknowledgment sufficient to keep the debt and the lien alive. The defense of the statute is made.

Anticipating the defense under the statute, or for the purpose

[600]

of founding the action upon a new promise, the plaintiff in his complaint attempts to aver a new.promise to pay the debt, made April 16, 1897, in a letter written by the defendant to an agent of plaintiff. That was after the statute had run, and conceding that it was sufficient as a new promise upon which an action might- be brought, it did not renew or continue the mortgage. This was determined in

Wells

v.

Harter,

56 Cal. 342, which case was, as to this point, affirmed in

Southern Pacific Co.

v.

Prosser,

122 Cal. 413. In the last-named case a distinction is pointed out between a new promise made before the statute has run and one made afterwards. The one keeps alive the first obligation, and if suit is brought, it must be upon the original promise, and'so long as the debt isi kept alive, tlie lien of the mortgage continues. If the new promise ivas made after the bar of the statute had accrued, the action must be based upon it. This was also held in

London etc. Bank

v.

Bandmann,

120 Cal. 220.

1

This is equivalent to raying that a lien is not extinguished by lapse of time, so long as the principal obligation is kept alive, and that a promise or acknowledgment continuing in force the principal obligation is not a renewal or extension of the mortgage, within the meaning of section 2922 of the Civil Code.