Tuohy v. Woods

Citations

• 122 Cal. 665
• 55 P. 683
• 1898 Cal. LEXIS 656

Syllabus

<p>Promissory Note—Collateral Security for Mortgage Debt—Extension of Time to Grantee—Release of Sureties.—Sureties who executed and deposited a note as collateral security for the payment of another note secured by mortgage, are released and exonerated from liability by an extension of time given by the mortgagee to a grantee of the mortgagor, who had assumed payment of the mortgage debt.</p> <p>Id.—Assumption of Mortgage Debt—Privity of Grantee—Surety-ship.—A grantee of the mortgagor who assumes payment of the mortgage debt is not a mere stranger to the principal obligation, but becomes the principal debtor, and his grantor becomes his surety; and the doctrines concerning suretyship must control the dealings between the mortgagor, mortgagee, and such grantee.</p> <p>In.—Consent to Extension of Time—Pleading—Negative Averment in Answer—Burden of Proof.—A negative averment in the answer of the sureties to a complaint on the collateral note that time for payment was extended to the grantee of the mortgagor, “without their consent,” is unnecessary, and the absence of such consent need not be proved by them. It is sufficient for them to show that the principal contract was «hanged; and the burden of proof is upon the plaintiff to show that it was changed with their consent.</p> <p>Id.—Extent of Injury to Sureties Immaterial.—The extent to which the sureties were injured by the extension of time on the principal obligation is immaterial, and is not a legitimate subject of inquiry in an action to enforce their liability.</p> <p>Appeal—Immaterial Findings.—Immaterial findings which do not affect the correctness of the judgment, though erroneous, are not ground for reversal of the judgment.</p>