Harden v. Ware

Citations

• 2 Cal. Unrep. 72

Syllabus

<p>Mortgage.—There can be but One Action for the Recovery of any debt secured by mortgage.</p> <p>Mortgage—Foreclosure Ordered Though not Asked in Complaint. Whenever it appears by the pleadings or proof in a case that the plaintiff is entitled to recover judgment upon a debt secured by mortgage, the court may by its judgment direct the sale of the mortgaged property, even though such relief has not been specifically demanded in the complaint.1</p> <p>Actions.—The Old Distinction Between Legal and Equitable Remedies will not prevent a California court, in a simple action to recover on a promissory note, from directing by its judgment a sale of property upon which it has been made to appear that such note was expressly secured.</p> <p>Action—Mistake of Remedy.—A Suit Does not Fail because of the plaintiff's’ happening to mistake the form of his remedy.</p> <p>Bills and Notes.—In a Simple Action to Enforce Payment of a promissory note, allegations in the answer to the effect that the note was secured by mortgage does not constitute a good plea in either bar or abatement.</p>