Tarke v. Bingham

Citations

• 123 Cal. 163
• 55 P. 759
• 1898 Cal. LEXIS 1005

Syllabus

<p>Foreclosure op Mortgage—Reformation of Copy of Note—Clerical Misprision—Mutual Mistake.— In an action to reform a mortgage in respect to the copy of the note therein described, and to foreclose it as reformed, where it appears that, by clerical misprision of the scrivener, the note was incorrectly copied in the mortgage, and that all parties to the mortgage intended that it should contain a true copy of the note actually executed by the defendants, the plaintiff is entitled to a reformation of the mortgage upon the ground of mutual mistake.</p> <p>Id.—Statute of Limitations — Discovery of Mistake — Pleading— Proof.—Where the action to reform and foreclose the mortgage was commenced more than three years after the execution of the mortgage, and the complaint did not plead a discovery of the mistake for which the reformation was sought within the three years, limited by subdivision 4 of section 338 of the Code of Civil Procedure, and the answer pleaded that the cause of action to reform the mortgage was barred by that limitation, such pleading of the answer is deemed controverted by the plaintiff and he may prove in reply that the mistake was discovered within said period of three years.</p> <p>Id.—Means of Knowledge—Duty to Investigate.—A plaintiff who seeks relief upon the ground of fraud or mistake, must not. merely allege or show ignorance at one time and discovery at another, but when called upon for pleading or proof, he must show diligence and that he has not failed to avail himself of sources of information of which he had knowledge, and to investigate which was a duty incumbent upon him.</p> <p>Id.—Absence of Duty to Inquire—Failure to Use Means of Knowledge—Discovery within Period of Limitation.—If no duty rested upon the plaintiff to make inquiry, under the circumstances, and a prudent man would not thereunder be put upon inquiry, the mere fact that means of knowledge were open to the plaintiff more than three years before the commencement of the action,