Tucker v. Howe

THE COURT. This action was brought upon a promissory note which contained the recital “this is a deed of trust note subject to a first deed of trust note”. The complaint contained no averment that the note was secured by a deed of trust or otherwise. A demurrer upon general grounds and upon the special ground that the complaint was uncertain in that the nature of the writing securing the note could not be determined from the complaint was overruled, and defendant answered. The cause came on regularly for trial before a jury and plaintiff was sworn as a witness, whereupon the defendant objected to the introduction of any evidence in the case on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The specific objection appears to have been that the complaint showed that the note was secured, but not that the security had failed or had been exhausted. The objection was sustained and a judgment of dismissal entered. Plaintiff has appealed therefrom.

Such motions are to be determined upon the same principles as would be a general demurrer to the complaint upon the same ground, and this regardless of any grounds of special demurrer or any defense set up in the answer (Hibernia Sav. & Loan Soc. v. Thornton, 117 Cal. 481 [49 Pac. 573]; Elmore v. Tingley, 78 Cal. App. 461 [248 Pac. 706]). Pleadings must be liberally construed (Code Civ. Proe., sec. 452), and, as held in the cases cited, a complaint upon a promissory note which contains the usual and proper allegations is not rendered insufficient to constitute a cause of action because of a recital in a copy of the note that “this note is secured by a mortgage of even date herewith”, as such recital is not equivalent to an averment to that effect. The same rule was applied and the decision first above cited followed and approved in Hayt v. Bentel, [163164] Cal. 680 [130 Pac. 432]. It has been held generally that the fact that a note is secured by a mortgage is an affirmative defense (Brophy v. Downey, 26 Mont. 252 [67 Pac. 312]; Bank of Paso Robles v. Blackburn, 2 Cal. App. 146 [83 Pac. 262]). (See, also, Thompson v. Koeller, 183 Cal. 476 [191 Pac. 927].) As a general rule there can be but one action for the recovery of any debt or the enforcement of any rights secured by a mortgage (Code Civ. Proc., sec. 726); and in the absence of unusual circumstances an independent action on a note secured by a deed of trust cannot be maintained unless and until the security is exhausted or shown to be valueless (Bank of Italy, etc., v. Bentley, 217 Cal. 644 [20 Pac. (2d) 940]).