Lander v. Castro

By the Court,

Rhodes, J.: The promissory note and mortgage in suit purport to have been executed by Juan Bautista Castro and José Francisco Castro, by Manuel Castro, their attorney in fact. Both instruments bear date August 27th, 1860, and the money therein mentioned was payable twelve months after-date. The action was brought August 26th, 1865, and the first amended complaint was filed January 2d, 1869. Manuel Castro was not made a defendant at the commencement of the action, but was brought in as a defendant by the first [500]amended complaint. In 1857, as the complaint shows, Manuel was the owner of the mortgaged premises, and during that year conveyed the same to .Juan Bautista. He had no authority from Juah Bautista to make the note or execute the mortgage, but he held a power of attorney from José Francisco, authorizing him to execute the mortgage. It is alleged in the amended complaint that the money for which the note was given was loaned to Manuel for his sole use and benefit, and that at the time of the execution of the mortgage he owned the entire beneficial interest and estate in the premises, notwithstanding his conveyance of the legal title to Juan Bautista. After the execution and foreclosure of certain mortgages and the execution of certain conveyances, the legal- title to the premises vested in defendant, Jeremiah Clarke; but it is alleged that he is chargeable with notice of the plaintiff’s rights in the premises. The interest which accrued on the principal sum mentioned in the mortgage down to September 29th, 1860, was paid, and July 27th, 1864, the further sum of five thousand and sixty dollars was paid, and the balance remains unpaid. It is claimed by the plaintiff that the note was in truth the note of Manuel; that he borrowed the money for his own use, and that as he held the beneficial estate in the land, the mortgage is his mortgage, and that, whatever interest or estate Clarke acquired in the premises, is subordinate and subject to the mortgage. Both Clarke and the Castros demurred to the complaint, on the ground that it did not state sufficient facts, and that the plaintiff’s remedy was barred by the Statute of Limitations. The demurrer was sustained, and the plaintiff" refusing to amend the complaint, judgment was rendered for the defendants.

As José Francisco held no interest in the mortgaged premises, and as it is not claimed that he is liable on the note, he may be dismissed from consideration; and as Juan Bautista is not liable, for the money for which the note and mortgage [501]