Wormouth v. Hatch

By the Court, Shafter, J.: In foreclosure. It is charged in the complaint that one Pangburn and wife executed on the 29th of February, 1860, a mortgage to the plaintiff to secure Pangburn’s note of that date for the sum of three thousand eight hundred dollars, with interest, payable to the plaintiff or order in six months after date. That the title to the land passed through a series of conveyances from Pangburn to the defendants, the title vesting in them on the 17th of November, 1864, one and one half months after the note was barred. Should it be considered that this Pangburn mortgage is the one for the foreclosure of which the action is brought, the action cannot be maintained, for not only is the Statute of Limitations specially pleaded, but the fact that the mortgage note was outlawed at the commencement of the action is apparent on the face of the complaint. There is no averment that the note was ever renewed by Pangburn, who alone could renew it by legal possibility, nor is there any other fact averred bringing the securities within any exception of the statute. Therefore, should the plaintiff’s case, as presented in the complaint, be considered as based upon those securities, it is obvious that on the pleadings, and it was on them the case was submitted, judgment was properly entered for the defendants.

But we consider that the action is not based upon the [127]Patigbum note and mortgage. Those securities are stated in the complaint as matters forming a part of the history of a general transaction rather than as matters of essential averment. The defendants are not connected with the note, collaterally even, by an allegation that they undertook to pay it as the debt of another. On the contrary, the obligation with which it is sought to affect them personally is an alleged promise given by them to W. and A. Elder, of whom they bought the land, that they would pay to the plaintiff a portion of the purchase money equal to the amount due or to grow due upon the Pangburn note. Such promise, if given, was not an undertaking on the part of the defendants to pay the note of Pangburn, but a new and original promise by them to the Elders to pay their own debt to them by paying a certain amount of money to the plaintiff. If such promise was in fact given, the plaintiff could sue upon it as the party beneficially interested. (Prac. Act, Sec. 4; Baker v. Bartol, 7 Cal. 551.) To this contract Pangburn was an entire stranger. His mortgage had no relation to it, nor had his note, except as the amount due upon it was made the measure of the sum to be paid by the defendants to the plaintiff in part liquidation of their private indebtedness to the Elders. Hor did that note enter into the consideration of the defendants’ undertaking; that consideration lay altogether in the sale and conveyance of the lands by the Elders to the defendants. After alleging the new and original promise of the defendants to their immediate grantors, it is averred that it was further agreed by the defendants that the Pangburn mortgage should remain a lien upon the premises as security for the defendants’ promise. If this is not the case intended to be made, then it must be' upon the Pangburn note and mortgage, already considered and disposed of. But under this second aspect, the vital averments are the promise of the defendants to the Elders, binding themselves personally, and the agreement subjecting the land to a lien as collateral to that promise. Both averments were denied. The burden of