Wormouth v. Hatch

Citations

• 33 Cal. 121

Syllabus

<p>Statute of Limitations.—An action cannot be maintained to enforce a mortgage given to secure a note, if at the time the action is commenced more than four years have transpired since the note fell due, and this fact appears on the face of the complaint, or the Statute of Limitations is pleaded.</p> <p>Idem.—A complaint containing such a statement of facts shows upon its face that the note was outlawed, and in case of the submission of such a case upon the pleadings, judgment was properly rendered for defendants.</p> <p>Promise to Third Party.— Where the obligation, with which it is sought to affect defendants personally, arises out of an alleged promise given by them to W. and A. Elder, of whom they bought the land mortgaged by Pangburn to plaintiff, that they would pay a portion of the purchase money, equal to the amount due or to grow due upon the note given by Pangburn to plaintiff and secured by said mortgage, this is not a promise to pay the debt of another, nor to pay the Pangburn note, but ah original promise by them to the Elders, to pay their own debt to them, by paying a certain amount of money to plaintiff. If such promise was given, plaintiff could recover upon it as the party beneficially interested.</p> <p>Mortgage Lien founded upon Promise to Third Party. — If, in connection with such promise by defendants to the Elders to pay to plaintiff the amount of the Pangburn note as part of the purchase price of the land bought by them of said Elders, they further agreed with the Elders that the mortgage, given by Pangburn to plaintiff upon said land to secure the payment of said note, should remain a lion thereon as security for defendants’ said promise, plaintiff might, as the party beneficially interested, enforce such agreement as a lien upon said land. In such a case, the right of action is not upon the Pangburn mortgage, but upon said promises; but as the averments of plaintiff’s complaint setting up said promises are both denied by defendants in thei