Biddel v. Brizzolara
California Supreme Court
Appeal from a judgment of the Superior Court of the county of San Luis Obispo. Suit to foreclose a mortgage given to secure the payment of a promissory note. The note fell due June 25, 1875. The complaint was filed March 22, 1881. It was averred in the complaint that on October 22, 1878, Bartolo Brizzolara, the mortgagor and one of the defendants, sold the property to his co-defendant, Austin Eoberts.
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Appeal from a judgment of the Superior Court of the county of San Luis Obispo. Suit to foreclose a mortgage given to secure the payment of a promissory note. The note fell due June 25, 1875. The complaint was filed March 22, 1881. It was averred in the complaint that on October 22, 1878, Bartolo Brizzolara, the mortgagor and one of the defendants, sold the property to his co-defendant, Austin Eoberts. A copy of the contract of sale is set out in the complaint, and recites among other things “ that the consideration of said sale is as follows: Eleven thousand dollars in gold coin to be paid as…
1Opinion of the CourtMcKinstry, J.
The court below sustained the defendant’s demurrer to the complaint. The defendant by his demurrer, among others, took the objection that the cause of action alleged in the complaint was barred by the Statute of Limitations, and the objection that the complaint did not contain a statement of a cause of action.
The complaint contains the allegation: “So late as the 28th day of June, 1880, .... the defendant, Bartolo Brizzolara, by an instrument in writing signed by him, acknowledged said mortgage indebtedness, and that the same was a lien on said mortgaged property.”
To establish a new contract,…
2Cases cited9 opinions
- Lawrence v. . FoxNew York Court of Appeals · 1859
- Vrooman v. . TurnerNew York Court of Appeals · 1877
- Burr v. . BeersNew York Court of Appeals · 1861
- Halsey v. ReedNew York Court of Chancery · 1842
- King v. WhitelyNew York Court of Chancery · 1843
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3Cited by70 opinions
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- Bull v. CoeCalifornia Supreme Court · 1888
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