Harlan v. Smith

The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.

Plaintiff instituted a suit against Smith, as mortgagor, and defendants, Gilmore, Torrey and Fargo, as subsequent encumbrancers, for the purpose of foreclosing- a mortgage on certain lands in Alameda county; process was duly served on all the defendants, and no answer having been filed within the time prescribed by law, on motion of plaintiff] and on production of the original note and mortgage a decree was entered. Afterwards defendants, Gilmore, Torrey and Fargo moved that the judgment be set aside, and leave be given to file an answer, which motion being overruled, an appeal is taken.

It is contended that the complaint does not state facts sufficient to constitute a cause of action against the said defendants, because the mortgage which is set out in the complaint did not contain a sufficient [174]description of the premises to give notice of plaintiff's lien; or to vest the Court with jurisdiction over the subject. This point is not well taken. The mortgage describes the premises as the “ tract of land in Santa Clara county/known as the residence of Henry C. Smith, and which was granted to him by Horner, Beard and Pico.” This defective description is cured by the complaint, which sets out the tract by metes and bounds, and avers that since the execution of the said mortgage, the county of Alameda has been formed, partly of territory before included in Santa Clara, and that the land in the mortgage mentioned, lies within the present boundaries of Alameda county, where the mortgage is duly recorded. And that defendants, Gilmore, Torrey and Fargo acquired their interest in the land, subsequent to, and with notice of plaintiff’s lien. It is also contended that there was not sufficient evidence before the Court to justify the judgment. The judgment was rendered on the production of the original note and mortgage, and proof of personal service of process on each of defendants. Tins we apprehend is altogether sufficient.

At common law, default confessed every issuable fact stated in the declaration, and could only be set aside for objections to the declaration, which would have been good on general demurrer. Com. Dig., Pleader C., 20; Gould’s Pl., 145, 506; 2 Burr., 900; 10 East., 364 This rule has not been changed by our statute. This view disposes, also, of the third objection.

The fourth is, that the Court erred in refusing to set aside the judgment on motion.