Wells v. Harter

By the Court : For the reasons set forth in the opinion of Department One, judgment and order affirmed.

Opinion of Department One referred to above.

Ross, J.: On the 10th of May, 1869, plaintiff sold and conveyed to the defendant Bloomfield Harter certain real property. A part of the purchase-money was paid in cash, and for the balance, Harter executed to plaintiff his promissory note, dated May 10th, 1869, and payable May 10th, 1870, with interest thereon at the rate of one and one-half per cent, per month, and to secure the payment of the note, executed to plaintiff a mortgage on the premises. From the time of the purchase, Harter and his wife, who is also a defendant in this action, have resided upon the property. On the 10th of February, 1875, plaintiff and Harter executed the following indorsement in writing upon the note: [343]“ In consideration of one dollar, it is hereby mutually agreed that the within note shall be extended to February 10th, 1876, at one per cent, per month from this date. Petaluma, Feb. 10th, 1875.” On the 8th of November, 1875, Harter and wife filed a homestead on the premises.

This action was commenced February 28th, 1877, to recover the amount due from Harter, and to foreclose the mortgage.

Harter and wife answered separately, the wife setting up her rights under the homestead, and pleading the Statute of Limitations. The District Court gave plaintiff judgment against Harter for the amount of money due on the note, but refused to enforce the mortgage, and entered judgment in favor of Mrs. Harter.

The plaintiff moved for a new trial, which was denied, and the appeal is taken from the judgment, and from the order refusing a new trial.

The only question in the case is, whether the renewal of the note by Harter, made, as it was, before the filing of the homestead, but after the Statute of Limitations had run against the note and mortgage, operated to renew the mortgage also; or, to speak more accurately, whether the making of the new contract of February 10th, 1875, to pay the note, also operated to create a mortgage on the property to secure its payment.

However it may have been prior to the adoption of the Codes, we think, in view of their provisions, that the agreement in question could not have that effect.