Hibernia Savings & Loan Society v. Thornton

Citations

• 123 Cal. 62
• 55 P. 702
• 1898 Cal. LEXIS 984

Syllabus

<p>Mortgage—Action upon Note.—An action cannot be maintained upon a promissory note secured by a mortgage, to obtain a general money judgment upon the note, independent of an action to foreclose the mortgage.</p> <p>Id.—Answer—Plea op Mortgages—Foreclosure Not Aided—Defense to Action.—An answer in an action upon a note, setting up that the note was given in renewal of former notes given by the defendant for purchases of real estate from the plaintiff, for which several and respective mortgages were given, without describing any mortgaged premises, or averring that any particular mortgage secured the note sued upon, does not aid the complaint on the note, or authorize the foreclosure of any mortgage by the plaintiff; but sets up facts which negative the right of the plaintiff to maintain the action.</p> <p>Id.—Proof of Mortgage—Improper Judgment.—In the action upon the notes, the plaintiff cannot be allowed to prove one of the mortgages referred to in the answer, and claim a foreclosure thereof; and a judgment awarding such foreclosure must be reversed.</p> <p>Pleading—Aider of Complaint by Answer—Cause of action.—The rule that a defective complaint may be aided by the answer, is confined to the case where the answer affirmatively alleges the very fact that is missing from the complaint to make it sufficient; an insufficient complaint cannot be aided by an averment in the answer, which, if alleged in the complaint, would not state a cause of action.</p>