Franklin v. Harper.
| Decision Date | 03 December 1926 |
| Docket Number | No. 2967.,2967. |
| Citation | 32 N.M. 108,252 P. 170 |
| Parties | FRANKLINv.HARPER. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In foreclosure complaint, an express allegation of mortgagor's ownership of mortgaged premises is unnecessary. It is to be implied.
Foreclosure complaint, containing no allegation as to mortgagor's title or interest, was answered by claim of invalidity of mortgage on grounds of lack of consideration and that the property was community estate, the mortgagor's wife not having joined, to which it was replied that the mortgagor was trustee of the title for another, who authorized the mortgage and to whom the consideration ran. Held, that the reply was a departure and should have been stricken on motion.
Appeal from District Court, Catron County; Owens, Judge.
Suit to foreclose mortgage, brought by the First National Bank of Magdalena, continued by W. C. Franklin, as its receiver, against A. J. Harper. From a decree of foreclosure and sale defendant appeals. Reversed and remanded, with direction.
Foreclosure complaint, containing no allegation as to mortgagor's title or interest, was answered by claim of invalidity of mortgage on grounds of lack of consideration and that the property was community estate, the mortgagor's wife not having joined, to which it was replied that the mortgagor was trustee of the title for another, who authorized the mortgage and to whom the consideration ran. Held, that the reply was a departure and should have been stricken on motion.
Medler & Whatley, of El Paso, Tex., for appellant.
Nicholas & Bunton, of Magdalena, for appellee.
The First National Bank of Magdalena sued A. J. Harper for the foreclosure of a mortgage executed by the latter. From a decree of foreclosure and sale, Harper appeals.
The complaint may be said to have been in the usual form, setting up a copy of the mortgage. From the complaint and mortgage it appears that the mortgage was given to secure pre-existing indebtedness of one Henry Coleman. A demurrer to the complaint assigned, among other grounds, that the preexisting indebtedness of third parties was not good consideration for a mortgage, and that hence the mortgage was without consideration and void.
The demurrer having been overruled, an answer was filed, in which the defenses urged in the demurrer were carried forward, and, as further defense, it was pleaded that when appellant gave the mortgage he was a married man, and that any right, title, or interest held by him in the mortgaged property was community estate, and that the mortgage was therefore void under chapter 84, Laws of 1915.
Replying to appellant's answer, appellee alleged that appellant, at the time of giving the mortgage, had represented to appellee that he had authority to make the mortgage; that his claim that the real estate in question was community property was greatly prejudicial to appellee, and that appellant was estopped from asserting such claim; that at the time of the making of the mortgage appellee had commenced suit against said Henry Coleman, in which suit an attachment had been issued against Coleman's goods, chattels, and property, and had been levied upon the real estate in question, by reason of which attachment appellant had entered into negotiations with appellee for extension of time and opportunity to liquidate said Coleman indebtedness, and, in consideration of such extension, and of an advance of $500, had given the mortgage in question, and that by reason thereof an equitable lien and mortgage was created, binding upon the community rights of both husband and wife; and that at the time said mortgage was given appellant had represented that he had taken title by conveyance from said Coleman, not for his own use and benefit, but for the use and benefit of the said Henry Coleman, and to enable him to adjust and save the estate of said Coleman, who was so situated that he could not come to the state of New Mexico in order to look after his own affairs. The foregoing was followed by the direct allegation that appellant, in accepting title to the real estate from Coleman, was acting solely in the capacity of trustee, and had no private or personal interest in the said real estate. This reply is all found in a single paragraph.
Appellant moved to strike the reply, upon the ground that the facts therein alleged were inconsistent with the complaint, and constituted a departure therefrom, “in that by its complaint the mortgage therein mentioned and referred to was relied upon, and by its so-called reply an equitable lien is attempted to be set up. * * *” The motion was overruled, and the cause proceeded to trial and judgment.
At the trial appellant produced evidence to show that at the time of the conveyance by Coleman to him Coleman was a married man. The court found such to be the fact. The court further found, in accordance with the reply, that appellant had no beneficial right, title, or interest in the property, but held it merely as trustee for Coleman. Nevertheless, finding that the mortgage was given for Coleman's benefit and by his authority, he rendered judgment of foreclosure and sale.
Appellant here assigns 25 errors, and presents 9 major questions, none of which is free from difficulty, and most, if not all, of which represent legal complications growing out of the course taken by the pleadings.
[1] Appellant first contends that his demurrer should have been sustained, as the complaint sets up a mortgage void for want of consideration. He urges that he did not waive it by answering over; the insufficiency of the complaint to state a cause of action being a fundamental defect, which may be raised at any time. Appellee contends that the mortgage itself imports consideration, citing Code 1915, § 2181, and Flores v. Baca, 25 N. M. 424, 184 P. 532. Hence, it urges, no consideration need be shown by the complaint. Appellant replies, however, that this is not a case of mere failure to recite consideration in the contract, or allege it in the complaint. Both purport to show the consideration inducing the mortgage, which consideration-the pre-existing indebtedness of Coleman-was bad.
Having stated these contentions, we may pass them, since another ground of error controls the disposition of the case. Before proceeding to that ground, however, we may mention that by the reply, construed as a whole and interpreted in the light of the evidence adduced by appellee at the trial, it appears that appellee claimed no consideration moving to Harper personally, but that the mortgage sought to be foreclosed was upon Coleman's property, to secure Coleman's indebtedness, a further advance for Coleman's benefit, and to induce the dismissal of an...
To continue reading
Request your trial
-
Mann v. Whitely
...Had they been so joined in a complaint failing to negative title in them, an allegation of such title would be implied. Franklin v. Harper, 32 N. M. 108, 252 P. 170. The complaint in this case makes no positive allegation of title in any one. It does allege that defendant Dunlap claims owne......
-
Potter v. Connor.
...the reply rather than on those of the complaint. He cites Thayer v. Denver & R. G. R. Co., 21 N. M. 330, 154 P. 691, and Franklin v. Harper, 32 N. M. 108, 252 P. 170. We are not impressed with the contention. The allegation of the reply that appellant was able, willing, and ready to convey,......
-
Border Mortgage Co. v. Wood.
...of title be adjudicated. Further light may be thrown upon the pleadings by the decision of this court in the case of Franklin v. Harper, 32 N. M. 108, 112, 113, 252 P. 170, where we held that in a foreclosure proceeding it is unnecessary to allege title in the mortgagor as it is to be impli......
-
Border Mortg. Co. v. Wood
... ... Further ... light may be thrown upon the pleadings by the decision of ... this court in the case of Franklin v. Harper, 32 ... N.M. 108, 112, 113, 252 P. 170, where we held that in a ... foreclosure proceeding it is unnecessary to allege title in ... the ... ...