Dessart v. Bonynge
Arizona Supreme Court
APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Santa Cruz. F. M. Doan, Judge. The facts are stated in the opinion. It is not alleged in the complaint that the promissory note to secure which the homestead was to have been mortgaged is still unpaid. This is a most material allegation, and if non-payment is not alleged, the complaint is bad. Lent v. New York etc. By.
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APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Santa Cruz. F. M. Doan, Judge. The facts are stated in the opinion. It is not alleged in the complaint that the promissory note to secure which the homestead was to have been mortgaged is still unpaid. This is a most material allegation, and if non-payment is not alleged, the complaint is bad. Lent v. New York etc. By. Go., 130 N. Y. 504, 29 N. E. 988; Notman v. Green, 90 Cal. 172, 27 Pac. 157; Barney v. Yigoreaux, 92 Cal. 631, 28 Pac. 678.
1Opinion of the CourtCampbell, J.
This action was brought to reform a deed of trust executed by John Dessart and Alice Dessart, his wife, to W. A. Bonynge. Defendant Marsh is an attaching creditor of the Dessarts. From a decree reforming the instrument, as sought, the defendants appeal.
The complaint alleges that, by mistake of the scrivener employed to draft the instrument, a certain piece of real estate, the homestead of the Dessarts, was omitted, and that Marsh had notice of this omission at the time he caused the *38property to be attached. A demurrer was interposed to the complaint, but an examination of the record discloses…
2Cases cited4 opinions
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Ryan v. HollidayCalifornia Supreme Court · 1895
- Thompson v. Phœnix Ins.United States Circuit Court · 1885
- Notman v. GreenCalifornia Supreme Court · 1891