Siter v. Jewett

By the Court, Shafter, J.: The plaintiff sues as assignee of Thomas C. Hambly, to foreclose a mortgage executed to him by the defendant Jewett, on the 6th of February, 1854, and also to redeem from a prior mortgage by Jewett to one Brigham. All consideration of the bill as a bill to redeem may be dismissed, for the counsel of the plaintiff admits that it cannot be maintained in that aspect on the record now before us. The only question then to be considered by us is whether the Court below erred in dismissing the action as to the defendant Taylor in its other aspect of a bill to foreclose the mortgage of Jewett to Hambly, whereof the plaintiff is assignee.

The defendants Jewett and Gorham, having failed to answer, defaults were duly taken against them. Taylor answered, and the dismissal as to him was on the pleadings and the evidence submitted at the trial. That judgment is the only one contained in the transcript, and for aught that appears to the contrary it is the only one entered, as yet, in the action. The appeal is from this judgment and from the order denying the plaintiff a new trial.

The complaint sets up the note and mortgage of Jewett to Hambly, made on the 6th of February, 1854, and the assignment by Hambly to the plaintiff. It further alleges, with other things not necessary to be stated here, that the title to the land had become vested in the defendant Taylor under the following deraignment: A decree rendered in 1854 foreclosing the prior mortgage to Brigham in a suit by Brigham against Jewett and Gorham, his assignee in insolvency, to which suit Hambly was not made a party; a purchase by one Swain at the foreclosure sale, and a Sheriff’s deed to him duly executed, and various mesne conveyances from Swain to the defendant Taylor. Taylor’s answer stated three several defences to the action, each being separately stated: First—A general denial. Second—A plea—as the counsel for the plaintiff understands it—“ setting up title in himself.” Third—The Statute of Limitations.

[96]Under the general denial the burden was upon the plaintiff of proving, amongst other things, that Taylor held the land subject to the Hamhly mortgage as alleged in the complaint; but the case was submitted without evidence upon that question. (Goodenow v. Ewer, 16 Cal. 468.) The counsel for the plaintiff insists, however, that the second defence stated in Taylor’s answer admits that he held the land by title derived from Jewett and subject to the Hamhly mortgage. But to this position there are two replies. In the first place it is not directly alleged in the complaint that Taylor took the Jewett title subject to the Hamhly mortgage. The averment is of a deraignment tending to prove that result. The second defence certainly does not expressly admit the deraignment; and should it be considered that the deraignment is not denied either directly or argumentatively by a counter statement irreconcilable with its truth, still it cannot be considered that Taylor admits it or any part of it by his omission to traverse it. The deraignment being but matter of evidence, Taylor was hot called upon to notice it at all. (Moore v. Murdock, 26 Cal. 525.) Ho sinister construction can be put upon silence when there is no obligation to speak. But the deraignment from Jewett to Taylor through the Brigham foreclosure, set up in the complaint, was not only not admitted by the second defence, but it was expressly put in issue by a counter statement therein, to the effect that Taylor’s title from Jewett came through a series of voluntary deeds “ and not otherwise.” This was a denial of the deraignment alleged in the complaint, by the “ formal traverse ” of the common law. (1 Ch. Pl. 589.) The burden of proving the disputed deraignment was of course upon the party asserting it, and no evidence was adduced or offered.