Low v. Allen

By the Court, Shafter, J. The defendants, Allen, Ramsdell, and Tharp, executed two promissory notes, jointly and severally, to W. C. Jewett, in the sum of fifteen hundred dollars each, dated September 10, 1853, payable in one year from date; and at the same time executed a mortgage to the payee to secure said notes. Allen left the State in the year 1855, and this action to foreclose the mortgage was commenced July 3, 1860. On the 3d of January, 1856, Ramsdell and Tharp conveyed their interests in the land to Sharp, one of the defendants, subject to the mortgage. The securities came to the plaintiff, by assign[144]ment, on the 31st of October, 1853. No personal judgment is claimed against Eamsdell or Tharp. Sharp appeared and pleaded the Statute of Limitations, to which the plaintiff replied that Allen departed from this State in 1855, and that he had not returned to it since. The Court held that the action was barred as to defendant Sharp, and a foreclosure and sale were decreed as to- the interest of Allen. The plaintiff appeals.

The question raised is, in effect, upon the sufficiency of the plaintiff’s replication to Sharp’s plea.

At common law, a mortgage was regarded as a conveyance of a conditional estate which became absolute upon a breach of the conditions. It gave to the mortgagee—except as otherwise provided by stipulations inserted in the instrument —a right to immediate possession. He could peaceably enter upon the land, or support ejectment. The two hundred and sixth section of the Practice Act changes this character of the instrument, and takes from the mortgagee all right to the possession either before or after condition broken, and makes the mortgage a mere lien. (Fogarty v. Sawyer, 17 Cal. 589.) Following out this view of the nature of a mortgage security under our laws, the late Supreme Court further held, in Lord v. Morris, 18 Cal. 482, that there could be no remedy upon the mortgage after the remedy was barred upon the mortgage note; and in McCarthy v. White, 21 Cal. 495, it was held that the grantee of the- mortgagor could claim the benefit of this principle. These cases meet the argument submitted for the appellant, in so far as it may be considered to be founded upon the rule of the common law.

According to the analysis of the counsel of the appellant, there were four notes given, in effect—the joint note of the three signers, and the several notes of each of them. The joint obligation is at an end, for it is admitted that neither Tharp . nor Eamsdell are personally liable upon the joint promise; and an action on the several promise of each of the two is also barred by lapse of time, and the several promise of Allen is the only one that survives. For all the purposes of argument,