Hibernia Sav. & Loan Soc'y v. Farnham

This is an action to foreclose the lien of a mortgage executed on February 21, 1893, by Annie F. Lennon and her husband, James H. Lennon, to plaintiff, to secure the payment of a promissory note of the same date for four hundred dollars, and the interest that accrued thereon. The appeal is from the decree of foreclosure, which fixes the amount due, directs the sale of the mortgaged premises to pay such amount, costs, and expenses of sale, orders judgment against the administrator for any deficiency remaining after such sale, and bars and forecloses the defendants from 6 the delivery of the commissioner’s deed, of and from all equity of redemption and claim in said mortgaged premises. Boland having died, John Farnham has been appointed administrator of said estaté, and substituted in place of Boland as defendant.

The note was due and payable, by its terms, one year after its date, that is, on February 21, 1894. The mortgage was acknowledged and certified so as to entitle it to be recorded, and it was recorded on February 23, 1893. Prior to the maturity of the note, and on or about March 29, 1893, said Annie F. Lennon died intestate. No proceeding for administration of her estate was commenced until the year 1900, when, on March 1, 1900, letters of administration of such estate were issued to P. Boland. Thereupon plaintiff presented for allowance the claim based on said mortgage, and the administrator having rejected the same, commenced this

No. claim is made by defendants that the action is barred as to the estate of Annie F. Lennon, the rule being well settled in this state that the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued. (Smith v. Hall, 19 Cal. 85 ; In re Bullard 116 Cal. 355 , [ 48 Pac. 219 ].) As against the estate, the statute of limitations did not begin to run until the issuance of letters of administration, March I, 1900, and this action was commenced May 10, 1900. So far as the estate was concerned, therefore, the judgment was clearly correct.

1. It is insisted that, on the admitted facts, plaintiff’s cause of action is barred by the statute of limitations as to

The statute providing that an action upon any contract in writing executed in this state must be brought within four years from the time the cause of action accrues (Code Civ. Proc., sec. 337), there can be no doubt that defendants’ claim that plaintiff’s cause of action against J. H. Lennon as a joint maker of the note and a co-mortgagor with Annie F. Lennon became barred on February 21, 1898, is well founded. But this is an immaterial matter in this case. No recovery was sought or given against J. H. Lennon or his grantee, Boyer, based upon any liability of said Lennon as a maker of the note or mortgagor. They were made parties defendant solely upon the theory that they were subsequent grantees, claiming under a conveyance from the mortgagor, Annie F. Lennon, recorded subsequent to the recording of plaintiff’s mortgage and prior to the commencement of action to foreclose the same, the sole object being to foreclose their rights under such conveyance. At the trial, the action was dismissed as to said J. H. Lennon, because of his conveyance to Boyer and the fact that he no longer claimed any interest in the property. If he had not conveyed the property and had remained a party defendant, the effect of the statute of limitations, if pleaded by him, would have been simply to protect him against personal judgment for any deficiency remaining due after sale of the premises, unless the plaintiff’s cause of action against him as a subsequent grantee was barred by the statute. And whatever protection the statute of limitations would have afforded him, purely as a subsequent grantee, his successors in interest are also entitled to. But they are entitled to nothing more.

Section 1214 of the Civil Code provides: “Every conveyance of real property, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is. first duly recorded, and as against any judgment affecting the-title, unless such conveyance shall have been duly recorded prior to the record of notice of the action.” The term “conveyance” as used in this section, embraces every instrument

2. Defendant Boyer contends that the doctrine of the law of the case is applicable on the question of the statute of limitations, and requires a ruling in his favor thereon. This contention is based on a decision of this court on a former appeal in this case from a judgment against him. (Hibernia etc. Soc. v. Boland, 145 Cal. 626 , [ 79 Pac. 365 ].) The judgment against Boyer was there reversed for the reason that there was no finding upon his pica of the statute of limitations, “nor of facts from which such finding may be inferred.” It was said that a finding in plaintiff’s favor on sufficient evidence upon the issue of the statute would have been sufficient to support the judgment. The all-important distinction between that appeal and this is that we now have findings, based on appropriate allegations of the amended complaint, of want

These are the only points made for reversal in the opening brief of defendants. Some additional points are made for the first time .in their closing brief. We are not disposed to look with favor upon a point so made, unless good reason appears for the failure to make it in the opening brief. This practice is not fair to a respondent, and tends to delay the final disposition of appeals. This court has heretofore said, that while it is undoubtedly at liberty to decide a case upon any points that its proper disposition may .seem to require, whether taken by counsel .or not, an appellant should, under the rules, make the points on which he relies in his opening brief, and not reserve them for his reply, and that the court may properly consider them as waived unless so made. (Webber v. Clarke, 74 Cal. 11 , [ 15 Pac. 431 ] ; Phelps v. Mayer, 126 Cal. 549 , [ 58 Pac. 1048 ].) This should undoubtedly be the .rule where no good reason appears for the omission to make the point -in the opening brief, and it does not appear that the appellant would be unjustly affected by a refusal to consider it. We think that it is properly applicable here. One .of the points so made is that the evidence is insufficient to support the finding that the plaintiff was without notice of the prior deed from Annie F. Lennon to J. H. Lennon at the time it took the mortgage and loaned the money secured thereby, and that the trial court improperly refused to strike out certain evidence given on behalf of plaintiff on that issue. It is true, as contended by defendants, that the burden of proof was on plaintiff to show the negative fact of want of notice (Bell v. Pleasant, 145 Cal. 410 , 413, [ 104 Am. St. Rep. 61 , 78 Pac. 957 ], and cases there cited), and it is also true that the evidence on this point is not as full and complete as it might have been. But there was competent evidence showing want of notice on the part of officers of .plaintiff having to do with the passing of the title and-the paying to

The judgment is affirmed.

Shaw, J., and Sloss, J., concurred.

Hearing in Bank denied.