Began v. O'Reilly

Citations

• 32 Cal. 11

Syllabus

<p>Mortgage as Evidence.—If a mortgage on a mining claim describes it generally by name, and then gives the monuments and cardinal points by which it is bounded on three sides, without naming the boundary on the fourth side, and there is an averment in the complaint stating the fourth boundary, and the complaint also gives the general name and the other three boundaries as contained in the mortgage, without naming the cardinal points, and the mortgage is not set out in Time toerba in the Complaint, it is admissible in evidence in an action to foreclose it, as against a subsequent mortgagee who denies that the mortgagor mortgaged the land described in the complaint.</p> <p>Parol Evidence to explain • Mortgage.—Where a mortgage on land describes the land generally by name, but does not state all the monuments bounding it on its several sides, and the complaint contains an averment as to what the monuments not given were, parol evidence maybe introduced to identify the mortgaged premises as set out in the complaint.</p> <p>Variance between Pleadings and Proofs.—A judgment will not be reversed on the ground of variance between the pleadings and proofs when the variance does not mislead the appellant to his prejudice.</p> <p>Idem.—The seventy-first section of the Practice Act, requiring immaterial variances between the pleadings and proofs to be disregarded, is a most beneficial provision, and should be literally construed and carried out.</p>