Ryan v. Holliday

Citations

• 110 Cal. 335
• 42 P. 891
• 1895 Cal. LEXIS 1061

Syllabus

<p>Foreclosure of Mortgage—Pleading—Averment of Nonpayment Essential—Appeal from Default Judgment.—In an action to foreclose a mortgage securing a note, the breach of the contract to pay the note is of the essence of the cause of action, and must be alleged; and a failure to aver nonpayment of the note is fatal to the complaint upon appeal, although no demurrer was interposed, and the judgment went by default.</p> <p>Id.—Averment of Amount Due — Conclusion of Law.—An averment that “there is now due and owing to the plaintiff ” a specified sum is but the averment of a conclusion of law, and not of a fact, and is not the equivalent of an averment of nonpayment.</p> <p>Id.—Estates of Deceased Persons—Purchase of Mortgaged Land by Decedent—Pleading—Presentation of Claim — Waiver.—A complaint in an action to foreclose a mortgage which was not executed by the deceased person, in which the administrator of the deceased person is made a party defendant solely by reason of the fact that subsequently to the making of the mortgage the mortgaged land was purchased by the decedent in his lifetime, and the title thereto vested in his estate at his death, subject to the mortgage lien, need not aver either a presentation of a claim against the estate of the decedent, or an express waiver of any recourse against his general estate.</p> <p>Id.—Claims against Estate—Construction of Code.—Section 1500 of the Code of Civil Procedure only applies to cases where the note and mortgage constitute a claim against the estate of a deceased person, and has no application to a case where he purchased the land subject to a mortgage, in which case there is no claim to he presented against his estate.</p> <p>Id.—Sufficiency of Summons—Representative Capacity of Administrator—Reference to Complaint.—In an action to foreclose a mortgage, in which one of the defendants is described by name in the summons with the appended words “ administrator with the will annexed,” etc., of a deceased person named,