Sawtelle v. Muncy

Citations

• 116 Cal. 435
• 48 P. 387
• 1897 Cal. LEXIS 567

Syllabus

<p>Mortgage—Foreclosure—Defenses—Want of Consideration—Fraud —Menace—Findings—Conflict of Evidence.—In an action to foreclose a mortgage, where the answer pleaded as defenses a want of consideration for the note and mortgage, and that the same were procured by false and fraudulent representations of the plaintiff, and by menace of a criminal prosecution, without which fraud and menace they would not have been made or executed, and there were no witnesses upon the trial other than the parties to the action, and the court, accepting the testimony of the defendants, which supported the answer, and rejecting the uncorroborated testimony of the plaintiff to the contrary, found that each of the defenses was true, the findings cannot be disturbed upon appeal for insufficiency of evidence; and the defense of want of consideration being supported, it is immaterial whether the fraud or menace was sufficient to defeat the note.</p> <p>Id.—Husband’s Note—Wife’s Mortgage—Validity of Note Essential to Foreclosure—Defense of Husband—Default of Wife.—Where a wife mortgaged her separate real property to secure a note of the husband, the establishment of the validity of the note against the husband is an essential predicate to the foreclosure of the mortgage; and where, upon the husband’s defense, the note fails for want of consideration, the plaintiff has no claim to be satisfied out of the wife’s property, notwithstanding she may have made default in the action, and without regard to whether her default is waived or not.</p> <p>Id.-—Waiver of Wife’s Default—Subsequent Pleadings not Objected to—Trial upon Merits.—The default of the wife is waived, where, subsequently thereto, she interposed pleadings which were not objected to, and by going to trial against her upon the merits.</p>