Shafer v. Bear River & Auburn Water & Mining Co.

4 Cal. 294

Opinion

Mr. Justice Heydenfeldt

delivered tbe opinion of tbe Court.

-Mr. Cb. J. Murray and Mr. J. Wells concurred.

There is no express covenant in tbe mortgage to pay tbe money, and no action will, therefore, lie on its mere [296] recital of *the existence of the debt. Tbe declaration contains no averment of indebtedness, except by way of recital, and it avers no consideration to support tbe promise. Tbe Court, therefore, erred in instructing tbe juiy that tbe mortgage sued on contained a sufficient recognition of an existing debt to authorize a recovey. (See 4 Kent, 145.)

Tbe judgment is reversed and tbe cause remanded.