Reports of Cases Determined in the Supreme Court of the State of California (Volume 21) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1863 Excerpt: ... McCarthy v. White. Mccarthy V. White a ai. Where an action upon a promissory note, secured by a mortgage of the same date upon real property, is barred by our Statute of Limitations, the remedy upon the mortgage is also barred. Lord v. Morris (18 Cal. 482) affirmed on this point. It is not a correct theory of the Statute of Limitations that the expiration of the period fixed by it raises a presumption of payment, and that the effect of an acknowledgment is to rebut this presumption. The statute is to be regarded as one of repose, the benefit of which may be relinquished by the party interested, but cannot be taken from him without his consent. If two or more persons are bound, the statute affords the same protection to each, and an acknowledgment by one is not available against another, unless he had authority to make it, either expressly given or resulting from the relation of the parties. The principles which govern as to the operation of the statute, and the effect of an acknowledgment, in cases of personal liability, are equally applicable to coses where an attempt is made to enforce a security. A party who, subsequent to the execution of a mortgage, purchases the property from the mortgagor, may avail himself of the Statute of Limitations as a defense to an action for the foreclosure of the mortgage commenced after the statute has run against the debt secured. W. and K. owning a tract of land in common, W., in 1853, mortgaged his interest in a portion of the tract, containing four hundred and eighty acres, to M., to secure a note executed at the same time, and falling due March 4th, 1854. April 3d, 1856, W. and K. entered into a written agreement for the partition of the whole tract, by which the four hundred and eighty acres mortgaged was to belong ex...