Johnson v. Polhemus

Citations

• 99 Cal. 240
• 33 P. 909
• 1893 Cal. LEXIS 647

Syllabus

<p>Fobeolosubb of Hobtqaqe—Secübity of Note and Wbitten Aqbeement—Application of Payments — Complaint Relyins upon Note—Relief upon Wbitten Aqbeement — Pbayeb of Complaint. — In an action by the executors of the mortgagee to foreclose a mortgage given to secure a promissory note, and also a written agreement of the mortgagor to pay to the mortgagee the remainder of full interest on a prior mortgage, unless the mortgagee was willing to accept a less rate already paid as payment in full, when the complaint averred that the mortgagee and his executors did not elect and never consented to accept the less rate, and that payments made by the mortgagor had been applied by the executors of the mortgagor in payment of the amount due upon the written agreement, and prayed for foreclosure of the mortgage for a balante due upon the note, and the answer took issue upon the allegations as to the written agreement, and averred that the mortgagee agreed to accept the less rate paid as payment in full, and also that the note had been paid in full, and that the payments made were applied by the defendant to the extinction of the note, and the findings were responsive to the issues, and establish that the agreement to pay interest in full was never discharged, but that the note was paid in full, and that plaintiffs had no right to apply any payments upon the written agreement, the facts in regard to the written agreement were sufficiently embraced within the issues to warrant a decree of foreclosure of the mortgage for the amount due and unpaid upon the written agreement, though not specifically prayed for in the complaint.</p> <p>Id.—Pleading undeb Oode — Equitt Pbactioe—Prateb of Complaint—Belief Embraced within Issues. — Our Oode of Civil Procedure in prescribing the mode of pleading had adopted the essential elements of the former equity practice, providing that in case of default the relief is confined to the relief demanded in the complaint, if justified by its allegations and g