Shafer v. Bear River & Auburn Water & Mining Co.
California Supreme Court
Appeal from the Eleventh Judicial District. The complaint states that the defendants, on the 10th of November, 1851, being indebted to the plaintiff and one Thomas Sharp, in the sum of three thousand dollars, and to secure the payment thereof, and as an acknowledgment of such indebtedness to be paid by Isaac Nixon, the then President of said Company, and under the corporate seal of the same, made and delivered to said plaintiff and Sharp thi’ee certain writings obligatory,…
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Appeal from the Eleventh Judicial District. The complaint states that the defendants, on the 10th of November, 1851, being indebted to the plaintiff and one Thomas Sharp, in the sum of three thousand dollars, and to secure the payment thereof, and as an acknowledgment of such indebtedness to be paid by Isaac Nixon, the then President of said Company, and under the corporate seal of the same, made and delivered to said plaintiff and Sharp thi’ee certain writings obligatory, as follows: “Know all men by these presents, that we, the Bear River and. Auburn Water and Mining Company, of the Town of…
1Opinion of the CourtJustice 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.
2Cited by9 opinions
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- Chesney v. ChesneyUtah Supreme Court · 1908
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