De Celis v. Porter

Citations

• 65 Cal. 3
• 2 P. 257
• 1884 Cal. LEXIS 420

Syllabus

<p>Implied Promise—Equitable Liability—Valuable Consideration.— On the foreclosure of a mortgage, the court, with the consent of the plaintiff, allowed a credit to the mortgagor for a sum which he was bound to pay to a third party, but for which the mortgagee was not liable. The mortgagor executed a second mortgage for the amount of the reduction. Subsequently the judgment of foreclosure of the first mortgage was satisfied by a judicial sale. Held, (1) that having received the full benefit of the credit there was an implied promise by the mortgagor to repay the amount, and that this was a sufficient consideration for the second mortgage. (2) That the cause of action upon the second mortgage accrued at the date of the rendition of the judgment upon which the credit was given.</p> <p>Practice—Misjoinder of Parties. —On an appeal from a judgment of foreclosure, if it appears that unnecessary or improper parties were united with the proper plaintiffs, the court may order a judgment in favor of the proper plaintiffs, and direct that the complaint he amended by striking out the names of those improperly joined.</p> <p>Findings—Inferences of Fact.—The appellate court may draw inferences of law from the facts found by the trial court, hut cannot infer from the findings a fact not found.</p>