Waldrip v. Black

Foote, C. This .is an action which was instituted for the purpose of foreclosing a mortgage against S. N. Black and Julia A. Black., ^

The court below gave judgment by default against S. N. Black, and the cause having been tried upon its merits, rendered judgment, as prayed for in the complaint, against Julia A. Black. She alone has appealed from the judgment and an order denying her a new trial.

It appears from the record that the mortgage was executed by the Blacks in favor of Waldrip, to secure him harmless against having to pay a joint note for three [411]hundred dollars, which the two Blacks and Waldrip had signed as joint makers in favor of one Logsdon, or order, due three months after its date, and bearing interest at one per cent per month until paid.

The complaint alleges although Waldrip was an apparent maker, that he was in fact a mere surety for the Blacks, and after the note became due, the Blacks having suffered it to remain unpaid except the sum of nine dollars, that Waldrip paid to Logsdon, the payee, the full amount due upon the note, and had it indorsed to himself, and that the mortgage was given to secure him in the reimbursement for such a payment, if he should be obliged to make it.

That pleading also contained a copy of the note and mortgage upon which the suit was brought, but the answer of Julia A. Black thereto was not verified, hence the genuineness and due execution of those instruments were admitted. (Code Civ. Proc., sec. 447.)

The language of the mortgage, as set out in the complaint, although not as definite as might be desired, is sufficient to show, in the absence of any proof to the contrary, that the note was signed by Waldrip as a surety merely, and no demurrer having been filed pointing out any special defects of the complaint, the judgment should not be reversed for the want of a sufficient allegation of the plaintiff’s suretyship. (Chase v. Evoy, 58 Cal. 349.)

The genuineness of the mortgage is not controverted, and its recitals are to be held as true. (Code Civ. Proc., sec. 1962, subd. 2.)

It is clear, therefore, that the plaintiff signed the note as surety only, and that the mortgage was executed to save him harmless, and to reimburse him for any payment for and on account of the note he might be compelled to make.