Brandenstein v. Johnson

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McFARLAND, J.

This is an action to foreclose a mortgage on certain land, executed by defendant R. B. Johnson to plaintiff on December 12, 1892, to secure a promissory note of that date, whereby defendant Johnson promised to pay plaintiff or order five thousand dollars, with interest, two years after date. The Fresno Loan and Savings Bank, a corporation, and R. E. Minier were made defendants, upon the averments that they claimed some interest in the mortgaged premises which are averred to be subsequent and subject to.the lien of plaintiff’s mortgage. The Fresno Flume and Irrigation Company, a corporation, was also made a party defendant; but as no question is made as to its right to a certain easement, the appeal as to this defendant need not be considered. Before the commencement of the action the defendant Johnson had filed a petition in voluntary insolvency, and had been adjudged an insolvent, and defendant Warlow had been appointed his assignee. Johnson and Warlow made default. The defendants the Fresno Loan and Savings Bank and R. E. Minier answered, alleging that each had a judgment lien against the mortgaged premises acquired subsequently to the date of the mortgage sued on, and pleaded the four-year statute of limitations, and averred that their liens were paramount and superior to the lien of plaintiff’s mortgage; and it was admitted that they had such liens. The trial court rendered judgment foreclosing the mortgage, but decreeing that the mortgage lien of plaintiff was subject to said liens of the said two defendants; and from that part of the judgment in favor of said two defendants plaintiff appeals.

The note secured by the mortgage matured December 12, 1894; and, on its face, was barred in December, 1898, and this action was not commenced until several months thereafter. In order to avoid the plea of the bar of the statute, it is averred in -the complaint, and it is a fact, that in May, 1898, several months before the debt was barred, the mortgagor, Johnson, departed from the state of California, and has ever since been and still is absent from this state. But it is contended by respondents, and was held by the trial court, that while the mortgagor’s absence from the state stopped the running of the statute as against plaintiff, the mortgagee, it had not that effect as against the judgment

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