Johnston v. McDuffee

Thornton, J. Action to foreclose a mortgage executed by one Winters to Jameson and defendant Mc-Duffee, to secure two notes, one to Jameson and the other to McDuffee. The mortgage is joint, and the notes are several, as stated above.

Jameson assigned his note and the mortgage to secure it to the plaintiff Johnston.

[31]McDuffee, after the execution of the notes and mortgages, and before this action was brought, purchased of the mortgagor, Winters, the mortgaged premises, a conveyance of which was executed to him, Winters.

By his purchase of the equity of redemption of Winters, McDuffee became the holder of the legal title. He stood in Winters’s place in regard to the land mortgaged. McDuffee was made defendant, and properly made a defendant as the purchaser of the mortgaged property from Winters. As such purchaser, he came in by title subsequent and subject to the lien of the mortgage.

There was judgment of foreclosure against all the defendants. McDuffee only appeals.

It is argued that McDuffee is improperly such a defendant. We do not agree to this, for the reason above given. For the same reason the complaint states a cause of action against him. The property is described in the complaint by reference to the mortgage, which is appended to the complaint as an exhibit, and made a part of it. (Emeric v. Tams, 6 Cal. 156.) The mortgage sufficiently describes the mortgaged premises.

When the plaintiff offered the mortgage in evidence no objection was made to it.

It is not specified in any way that the findings are not sustained by the evidence.

The plaintiff offered in evidence his own deposition taken in the case. It does not appear to have been taken otherwise than in accordance with law.

The defendant McDuffee objected to the offer of this deposition, on the ground that it did not appear that plaintiff was absent from the county of San Bernardino (where the case was tried), and unable to be present at the trial, and on the further ground that it did not appear but that the facts sought to be proven by the deposition could be proved by other witness. The court overruled these objections, and the defendant excepted.