Love v. Sierra Nevada Lake Water & Mining Co.

Citations

• 32 Cal. 639
• 1867 Cal. LEXIS 113

Syllabus

<p>Surplus Averment in Complaint.—If the complaint in a foreclosure suit avers that the mortgage was executed by the defendant (thereby making it by averment a legal mortgage), and also sets out a copy of the same, and it appears on its face not to he a legal as distinguished from an equitable mortgage, the averment may he rejected as surplusage.</p> <p>Allegation in Complaint as to Contract Set Out.—When the plaintiff sets out in his complaint the contract sued on in the terms in which it is written, and then puts a false construction on its terms, the allegation repugnant to its terms should he regarded as surplusage.</p> <p>Relief granted when Mortgage is set out in Complaint.—If the complaint avers that the mortgage sought to he foreclosed was made by defendant, and contains a copy of it, and also avers facts making it an equitable mortgage, and it appears to be in fact an equitable mortgage, the plaintiff is entitled to have it enforced as such.</p> <p>Statement must Specify how . Evidence is Insufficient.—If the statement on motion for a new trial does not specify the particulars in which the evidence is alleged to be insufficient, the appellate Court will assume the facts admitted in the pleadings as well as those found.</p> <p>Mortgage of Corporation.—A mortgage purporting to he the mortgage of a corporation, but signed by its trustees individually, and not by the corporation by its trustees, is not the legal mortgage of the corporation.</p> <p>Idem.—Though such mortgage does not hind the corporation as a legal mortgage, yet it does not follow that it may not be enforced in equity.</p> <p>When Mortgage made by Agent will be Enforced in Equity.—A mortgage on real estate, made by an agent for his principal, though inoperative at law for want of a formal execution in the name of the principal, is binding in equity if the attorney had authority and the failure to execute in the name of the principal resulted from accident or mistake, and will be enforced against