Grattan v. Wiggins

Citations

• 23 Cal. 16
• 1863 Cal. LEXIS 177

Syllabus

<p>The defense of the Statute of Limitations is a personal privilege of the debtor which he may assert or waive at his option, but it must be set up in some form either by demurrer or answer, or it will be deemed to have been waived.</p> <p>In an action to recover judgment for the amount of a debt secured by mortgage on real estate, and also to foreclose the mortgage, the grantees of the mortgagor, purchasers subsequent to the execution of the mortgage, have a right to plead the Statute of Limitations as to that part of the claim of plaintiff which asks for a decree foreclosing the mortgage and a sale of the mortgaged premises.</p> <p>Sec. 260 of the Practice Act of 1851 which provides that “a mortgage of real property shall not be deemed a conveyance whatever its terms ” etc., applies to all mortgages, as well those executed before as after its passage.</p> <p>When a debt, secured by mortgage, is payable in installments, the mortgagee or his assignee has a right to bring an-action to foreclose the mortgage when the first installment falls due and is not paid.</p> <p>A debt due to the intestate is a personalty, and does not descend to the heir like realty, but vests in the administrator, who has the sole right to maintain actions to collect the same, and it is error to join the heir as plaintiff with the administrator in an action to enforce its collection.</p> <p>Where several notes have been given which are secured by one mortgage, and the notes are assigned to different persons, the assignor has a right, by agreement with the assignees, to fix the rights of the purchasers of the several notes to the mortgage security.</p> <p>Where in such case the assignee of one note having the first right to the benefit of the mortgage security forecloses when the debt falls due, and obtains a decree under which all the mortgaged property is sold, such foreclosure and sale operate as an extinguishment of the mortgage.</p> <p>The holders of the other notes secured by the mortgag