Lyon v. Petty

Citations

• 65 Cal. 322
• 4 P. 103
• 1884 Cal. LEXIS 539

Syllabus

<p>Cboss-Demands—Set-oee—Counteb-Claim—Mobtgage.—Cross-demands to be the subject of set-off, under section 438 of the Code of Civil Procedure, must be mutual, and co-exist as separate causes of action at the commencement of the action upon the principal demand; and where an action was brought by an administrator to foreclose a mortgage given to secure a note which matured after the death of the intestate, held, that a promissory note of the deceased, assigned to the mortgagor, and which was due aud payable at the time of the intestate’s death, but was not presented to the administrator for allowance, cannot be set off against the mortgage debt.</p> <p>Id.—Nor can such cross-demand be set off against the mortgage debt if it is barred by the Statute of Limitations at the time of the commencement of the foreclosure suit.</p> <p>Id.—Assignment—PBomssoBr Notes.—Promissory notes assigned before maturity may be pleaded as a counter-claim by the assignee, in an action by an administrator to recover a mortgage debt due the estate from the assignee, although the notes were not presented to the administrator for allowance, if an'aetion could have been maintained upon them at the commencement of the foreclosure suit; but if assigned after maturity, the assignee takes them subject to all existing equities between the maker and payee, and under such circumstances they would not be the subject of a counter-claim, and could not be pleaded as such under section 438 of the Code of Civil Procedure.</p> <p>Id.—Pdeading.—An answer which sets forth facts which show that the defendant came into possession of the notes by assignment before the death of the intestate, but does not state whether before or after maturity of the notes, is insufficient.</p>