Frates v. Sears

GRAY, C.

This action is to foreclose a mortgage. The mortgagor and Redfield, a prior mortgagee, were made defendants. The plaintiff was denied all relief except a personal judgment against Sears, the mortgagor, for $1,412.25, the amount of her claim, and she appeals from the judgment.

The defendant Redfield held a note and mortgage on real estate against the defendant Sears for eight hundred dollars, dated April 21, 1893, and due one year after date. The plaintiff, Frates, held a note and mortgage on the same real estate against said Sears for seven hundred and fifty dollars, dated December 6, 1893, and due March 1, 1894. On November 21, 1895, defendant Redfield commenced suit to foreclose his mortgage, and on February 29, 1896, had judgment of foreclosure therein, and thereafter the property was sold in said case and bought in by Redfield for the amount of his judgment and the expense of the sale. In this Redfield foreclosure case the second mortgagee, the plaintiff herein, Frates, was not made á party, although her mortgage was recorded before the suit was begun. Thereafter, on February 23, 1898, this suit was begun by Frates to foreclose her said mortgage for seven hundred and fifty dollars on the same property. She made both Sears and Redfield parties defendant and alleged in her complaint that Redfield “has or claims to have some interest in or claim upon the said real property or some part thereof as purchaser, mortgagee, judgment creditor, or otherwise,” but that the same was subject to the lien of plaintiff’s mortgage. A demurrer to the complaint was filed and overruled, and on March 22,1901, the defendant Redfield filed his answer, in which he set out the facts in relation to the first note and mortgage and the foreclosure thereof as above stated.

[248]

Upon the trial of the ease, defendant offered in evidence the judgment-roll in the first suit, and plaintiff objected thereto as incompetent on the grounds following: “1. That plaintiff was not a party to the foreclosure action mentioned in said judgment-roll, and is not and could not be bound or affected by the judgment given in said action or by any of the proceedings had therein, or had under said judgment; 2. That said defendants Joseph R. Sears and J. B. Redfield could not by any act of theirs, to which plaintiff was not a party, whether by voluntary agreement or by action of foreclosure, extend or prolong the time of payment of the Redfield note and mortgage, so as to prevent the running of the statute of limitations against them in favor of plaintiff, and that at the time the defendant Redfield filed his answer herein, said note and mortgage were and are now barred by the provisions of sections 312, 335, and 337 of the Code of Civil Procedure of this state; 3. That what said defendants Sears and Redfield themselves could not voluntarily do the court could not by its judgment in said action of foreclosure do for them. They could not by any agreement to which plaintiff was not a party, nor could the court by its judgment in said action, to which plaintiff was not a party, extend or prolong the time of payment of said Redfield note or mortgage so as to prevent the statute of limitations from running against them in favor of plaintiff; 4. That to affect or cut off the plaintiff’s right to plead the statute of limitations against the Redfield note and mortgage, it was not only necessary for defendant Redfield to commence action upon his note and mortgage within four years from date of maturity against the maker of the same, which he did, but also against the plaintiff, which he did not; 5. That the court by its judgment in said action, in determining the matters in controversy therein, or in declaring or adjudging the rights of the parties thereto, or as affecting the rights of plaintiff, who was not a party thereto, had not the power to do anything which the parties themselves to such action had not the power to do by their own voluntary act in relation to the same matters or rights, without the aid of the court; 6. That the note and mortgage mentioned in said judgment-roll, which are the same note and mortgage described in the answer of said J. B. Redfield and alleged therein to have been executed to him by said defendant Sears,