Dexter v. Pierson

PRESTON, J.

We granted a rehearing in this cause to give further consideration to the contention of respondent that she could, as a subsequent purchaser, invoke the statute of limitations as a defense to a foreclosure action, notwithstanding an express covenant by the mortgagor of the premises inserted in the mortgage that such plea was perpetually waived. She cites a long line of cases, beginning with

Lord

v.

Morris,

18 Cal. 482, and ending with

Foster

v.

Butler,

164 Cal. 623, 627 [130 Pac. 6],

The substance of these holdings is that the mortgagor cannot, by waiving the bar of the statute, affect the right of a subsequent purchaser or encumbrancer of the mortgaged premises to insist, as to himself, that the action was not brought in time. Or, as stated in

Wood

v.

Goodfellow,

43 Cal. 185, 188: “When third persons have subsequently acquired interests in the mortgaged property they may invoke the aid of the statute as against the mortgage, even though the mortgagor, as between himself and the mortgagee, may have waived its protection; and we see no difference in principle* between a suspension of the running of the statute resulting from an express waiver and one caused by his voluntary act in absenting himself from the state. ’ ’

But this doctrine does not reach the situation before us. The eases referred to relate to acts or conduct of the mortgagor occurring after the purchase or encumbrance, in good faith, or such acts or' conduct before, of which the purchaser had no notice. Here the instrument hypothecated the property to secure the debt, giving a lien thereon, and it provided that such lien might not be defeated by the plea that it was barred by the statute.

Such provision being valid and contained in the instrument of record, the purchaser took with notice of it.

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