Lorenzana v. Camarillo

45 Cal. 125

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 3,414
• Status: Published

Opinion

By the Court:

1. The demurrer for misjoinder of parties defendant was not well supported, inasmuch as there was but one party defendant to the action.

2. The other objection by demurrer, that the- complaint is ambiguous, unintelligible, and uncertain, was properly overruled, as there was no specification of the particulars upon which it was based.

3. The defense of the Statute of Limitations must fail, inasmuch as it points to the time of filing the amended and not the original complaint as the period of time at which the statute is claimed to have barred the plaintiff.

4. There is nothing in the point that it appears in the amended complaint that Manuel Lorenzana, who seeks to redeem from the mortgage he gave to Camarillo, had no title to the mortgaged premises. His right to redeem springs from the fact of the execution and delivery of the mortgage, and in such a case it is no concern of the mortgagee whether or not the mortgagor in point of fact has a valid title to the mortgaged premises or any part thereof.

5. The evidence of Camarillo, as given by him at a previous trial of the action, was properly admitted.- We do not understand that it was the mere purport of his evidence, as settled in a former statement upon motion for a new trial, but was his evidence as actually given ipsissimis verbis, and incorporated in extenso in that statement.

6. Ho point as to the instructions given or refused concerning the elements which distinguish a mortgage from a reservation of a right to repurchase will be considered, inasmuch as the jury found no verdict upon the issue to which these instructions would alone have been applicable. The determination that the instrument was in fact a mortgage was subsequently made by the Court in its findings upon which the decree was rendered.

Decree affirmed.