Defendants' demurrers were all properly overruled.
If default is alleged, in that interest was not paid, or that taxes were neglected to be paid by defendants and were paid by plaintiff, and not repaid to him, does it not plainly follow that the right to foreclose and sell at once arose upon such default?
Defendants' neglect to pay the taxes, and their payment by plaintiff to prevent the sale of the mortgaged premises for such taxes, gave plaintiff the complete right of action to foreclose at once, and collect the whole debt. How otherwise can plaintiff be " empowered to sell the premises above described in the manner prescribed by law, and out of the proceeds of such sale retain the above amount of $ 36,000, with interest," etc.?
The decisions applicable to this branch of the case are: Whitcher v. Webb , 44 Cal. 127; Bank of San Luis Obispo v. Johnson , 53 id. 499; McKissick v. Cannon , 4 P. C. L. J. 285.
The mortgage is exactly in accordance with the approved forms in like cases. (See Spaulding's Law Encyclopedia and Forms, ed. 1877, p. 345.)
The general principles applicable to this case, in this regard, are also laid down in 1 Jones on Mortgages, §§ 71-77; Chick v. Willetts, 2 Kan. 384, 385; id. 54; Rubens v. Prindle, 44 Barb. 336; Broderick v. Smith , 26 id. 539; 37 id. 60; 15 How. Pr. 434; 24 id. 400.
Judgment was properly entered on the complaint, and answers upon the ground stated, because the answers failed to deny the facts alleged. They do not deny the genuineness and due execution of the notes and mortgages. " In such cases there can be no issue of fact upon the tenor or effect of the instrument." (Burnett v. Stearns , 33 Cal. 473, 474; Sacramento Co. v. Bird , 31 id. 67-73; Corcoran v. Doll , 32 id. 83-88.
Every denial is of some conclusion of law, made to negative, not some fact stated by the complainant, but some legal conclusion only. Such denials are mere evasions. (Lightner v. Menzel , 35 Cal. 460; Burke v. Table Mountain W. Co. , 12 id. 403, 407; Piercy v. Sabin , 10 id. 22, 27; Nelson v. Murray , 23 id. 338; Lightner v. Menzel , 35 id. 452; Castro v. Wetmore , 16 id. 379; Christy v. Dana , 42 id. 174; Kinney v. Osborne , 14 id. 113; Towdy v. Ellis , 22id. 659; Higgins v. Wortell , 18 id. 330, 333.)
The notes and mortgages now before this Court, having, as they do, the signatures of both husband and wife, properly acknowledged and certified, are valid and binding on both parties and on the property for all purposes, and would have so been at any time for more than twenty-five years past. It matters not whether the property in question belonged to the husband or to the wife, or was that of the community. (Marlow v. Barlew , 53 Cal. 456; Parry v. Kelley , 52 id. 334.)
As part consideration for the increase of two per cent. per year on the arrearages of interest, the mortgagee was lending $ 2,000 additional. Will it reasonably be inferred that he lent this further sum and waived his right to foreclose and get his principal of $ 36,000 on default of payment of interest, taxes, etc., for so paltry an advantage, and yet carefully guard that right on all the inferior sums in all subsequent mortgages, and notably in the very mortgage containing the supposed waiver? Should not the waiver be explicit, and not left to inference or argument? (Racouillat v. Sansevain , 32 Cal. 376; McNeil v. Shirley , 33 id. 202; Saunders v. Clark , 29 id. 299; Civil Code, §§ 1697, 1698.)
JUDGES: Thornton, J. Morrison, C. J., and Myrick and Sharpstein, JJ., concurred. McKinstry, McKee, and Ross, JJ., dissented.
OPINION
THORNTON, Judge
After the foregoing decision was rendered, a rehearing was had in Bank, upon which the following decision was rendered:
The Court:
This case was heard before Department One of this Court, and its opinion filed June 24, 1881. (7 P. C.L. J.733.) Subsequently, a hearing before the Court in Bank was granted. Such hearing having been had, an opinion by the Court in Bank was filed May 30, 1882. (9 id. 515.) Thereafter a rehearing in Bank was granted. Such rehearing has been had. We are satisfied with the views expressed in the opinion of the Court in Bank; and for the reasons therein given, the Court now makes the same order, and gives the same judgment as therein contained.