Drum v. Whiting.

The indictment charges the assault to have been committed with a knife upon the person of one Ira Marsh, the prosecuting witness in the case. The record purports to give the substance of all that was proved on the trial on the part of the prosecution; and it appears that the defendant, whilst in a state of intoxication, put one hand around Marsh, and struck a blow with the other hand, in which was held a scabbard, with a handle apparently of a knife; but it does not appear that the blow was struck with any violence, or that it produced any injury, or that any attempt was made to use the knife or other weapon which the scabbard might have contained; and the previous relations between the defendant and the witness, up to the moment of the commission of the assault, were of a friendly character.

The loose expression of the defendant, that but for the scabbard on the knife, he could or would have killed the witness, evidently referred to the consequences of a blow with the weapon unsheathed, and not to his intent at the time. The facts, as detailed in the record, fail entirely to support the verdict, and as there was no conflict of testimony in the case, a new trial should have been granted.

On a motion for a new trial in a criminal case, on the ground that the verdict is against the evidence, it is usual to set out in the statement on which the motion is made, all the material portions of the testimony, and as a general rule this Court will not review, on appeal, an order refusing a new trial on that ground, unless such testimony is contained in the record. In the present case, the testimony is not set forth, but the record states that it gives "in substance all that was proven on the part of the State." This is sufficient; the facts, as proved, being given, there can be no necessity of setting forth the testimony.

Judgment reversed, and cause remanded for a new trial.

DRUM v. WHITING.

In all cases not within the exception of the statute, an answer without a verification to a complaint duly verified, may be stricken out on motion; and application for judgment, as upon a default, may be made at the same time.

Inability of counsel to obtain defendant's verification in time, may be good ground for an extension of time to answer, but cannot avail in resisting a motion to strike out and for judgment after the answer is filed.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

The facts appear in the opinion of the Court.

Sublette v. Tinney.

Bryan & Filkins for Appellant.

I. S. & W. C. Belcher for Respondent.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BURNETT, J., concurring.

The original and amended complaints filed in this action were both duly verified under section fifty-one of the Practice Act. The answer of the defendant was unaccompanied with any verification, and on motion, was for this reason stricken out, and judgment ordered for the plaintiff as upon a default. From the judgment, the defendant appealed, and now assigns the ruling on this motion as error.

The only reason offered for want of a verification, was the residence of the defendant in another county, at a great distance from the place of trial, and consequent inability of counsel to obtain his affidavit at the time it became necessary to file the answer. This reason might have been sufficient ground for an extension, by the Court, of the time to answer, but could be of no avail in resisting the motion after the answer was filed. The language of the statute is imperative, and makes only one exception in which the verification of an answer may be omitted when the complaint has been duly verified, and that is, when the admission of the truth of the complaint might subject the party to a prosecution for a felony. (Practice Act, §§ 51, 52.) In all other cases, an answer, without a verification to a complaint duly verified, may be stricken out, on motion; and application for judgment, as upon a default, may be made at the same time. (Strout et al. v. Curran, 7 Howard's Practice Reports, 36.) Judgment affirmed, with five per cent. damages.

SUBLETTE v. TINNEY et al.

In an action for relief on the ground of fraud, the fraud is the substantive cause of action, and not the discovery. If, therefore, the plaintiff alleges the fraud to have been committed more than three years before the commencement of his action, his cause of action is barred, and his complaint is demurrable.

If the plaintiff wishes in such a case to bring himself within the exception of the statute, he must allege the fact of a discovery of the fraud at a period bringing him within the exception.

When it appears upon the face of a bill in equity that the suit is barred by lapse of time, the defendant may demur.

APPEAL from the District Court of the Fourteenth Judicial District, County of Nevada.

This was a bill in chancery brought to rescind a contract, on the ground of fraud.

Sublette v. Tinney.

To the bill a demurrer was interposed on the ground that the action was barred by the Statute of Limitation.

The Court below sustained the demurrer and dismissed the bill; and from its ruling the plaintiff appealed.

Francis J. Dunn for Appellant.

The action was not barred by limitation under our statute, and as the cause for which plaintiff sought relief was continuous from the time of the taking possession by defendants when the contract was made, down to the time of the commencement of the suit, no limitation could run. Pratt v. Vather, 9 Pet., 405; Hawley v. Crane, 4 Com., 717; Coleman v. Lynn, 4 Rand., 454; Johnson v. Johnson, 5 Ala., 90; Mitchell v. Thompson, 1 McLean's, 96, 146; Shields v. Anderson, 3 Leigh, 729; Prescott v. Hubbell, 1 Hill Chy. R., 210; Cram v. Prattier, 4 J. J. Marsh., 75; Raymond v. Simpson, 4 Blackf., 77; Provost v. Graty, 6 Wheat., 481; Mitchell v. Girard, 4 How., 503; Ward v. Van Bokelyn, 1 P. Ch. R., 100; Brown v. Brown., 1 Harp. Ch., 270.

There is no rule in equity that limits the time of the commencement of actions thereon to three years and three months, within which time this suit was brought.

John R. McConnell for Respondents.

The complaint sets forth the agreement or contract containing the transfer. It bears date January 21, 1854. This was the contract of sale. The cause of action accrued upon its execution. This suit was brought on the second day of March, 1857over three years after the cause of action accrued. It is therefore barred by the Statute of Limitations.

The defence of the Statute of Limitations is as available in equity as at law. It may be taken advantage of by demurrer if it appears upon the face of the bill; and, if plaintiff be within any exception of the statute, it is incumbent on him to state it in the bill. Story's Eq. Pleadings, §§ 484, 751, 756; Hoare v. Peck, 6 Simons R., 51; Humbert v. Rector Trin. Church, 7 Paige, 197, 198; Smith v. Clay, Ambler's R., 645.

The only cases in which the Statute of Limitations has been held not to govern Courts of Equity, are those cases in which there is no legal remedy whatever; as in case of such trusts as can only be enforced in equity.

But it is absolutely settled that whenever a legal right of action exists in regard to the subject-matter of the suit, a Court of Equity will be governed by the analogy of the law.

FIELD, J., delivered the opinion of the Court-BURNETT, J., concurring.

The plaintiff seeks a recision and cancellation of a contract entered into between himself and the defendants, Tinney and

Sublette v. Tinney.

Casey, for the sale of certain interests in mining-claims; and, as the ground for the relief sought, alleges a false and fraudulent representation by them of the ownership and possession of the mining interests which they had agreed to transfer to him, and the transfer of which constituted the principal inducement to the contract. To the complaint the defendants demurred, relying, among other grounds, upon the Statute of Limitations. The contract was executed, and bears date on the twenty-first day of January, 1854, and this suit was commenced on the second of March, 1857. The seventeenth section of the Statute of Limitations provides that certain actions must be commenced within three years; and among others, "an action for relief, on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud."

The cause of action cannot be deemed to accrue upon the discovery of the fraud, in any other sense than that the statute will not be deemed to commence running until such period. Fraud is the substantive cause of action; upon its commission the right of action arises, not upon its discovery. The policy of the law is, that actions on this ground should be commenced within three years; but, that innocent parties may not suffer whilst in ignorance of their rights, the statute excepts them from the limitation until a discovery of the fraud. The latter clause of the section must, therefore, be construed as an exception merely to the general provision, and be pleaded as such. In the present case, then, the cause of action accrued upon the execution of the contract. As this was more than three years previous to the commencement of the suit, the cause of action was barred, and the objection being apparent upon the face of the complaint, could be taken advantage of by demurrer. If the plaintiff was within the exception of the statute, it was incumbent upon him to state it in his complaint. (Story's Equity Pleadings, $$ 484, 751; Hoare v. Peck, 6 Simons, 51; Kane v. Bloodgood, 7 John. Ch., 113.)

In Humbert v. The Rector of Trinity Church, (7 Paige, 197,) the defendants objected by demurrer that the remedy was barred by lapse of time; and Mr. Chancellor Walworth, in affirming the decree of the Vice-Chancellor sustaining the demurrer, said: "It was formerly doubted whether a defendant in equity could, by demurrer, make the objection that the remedy was barred by lapse of time, or whether he must not resort to his plea. But it now seems to be settled that, if it appears upon the face of the bill that the suit is barred by lapse of time, the defendant may demur; and that, if the case is within any of the exceptions of the statute, the complainant must state the fact in his bill."

The plaintiff in the case at bar has not by any allegations of

Nagle v. Macy.

the complaint brought himself within the exception of the statute, and the demurrer was therefore well taken.

Judgment affirmed.

NAGLE v. MACY.

It is the settled doctrine of the law, repeatedly affirmed by this Court, that the prior possession of the plaintiff, or parties though whom he claims, is sufficient evidence of title to support the action of ejectinent.

In this State, a mortgage is not treated as a conveyance, vesting in the mortgagee any estate in the land, either before or after condition broken. It is a mere security for the debt, and default in the payinent does not change its character. Possession by the mortgagee cannot abridge, enlarge, or otherwise affect his interest, nor convert that which was previously a security into a seizin of the freehold.

If the mortgage confers no right of possession, entry under it can give none. It does not change the relation of debtor and creditor, or impair the estate of the mortgagor, but leaves the parties exacly as they stood previous to such possession.

The character of a mortgage, as security, is in no way affected by the fact that judgment for the debt has been obtained.

As dis

The debt and mortgage are inseparable. The latter must follow the former. tinct from the debt, the mortgage has no determinate value, and is not a subject of transfer.

Where the mortgagor dies after decree of foreclosure entered, and no administration is had upon his estate, it seems that there is no reason why the execution of the decree should be stayed. The suit is in the nature of a proceeding in rem. The decree binds the specific property, and the case is within the reason of the proviso in section one hundred and forty-one of the Act Concerning the Estates of Deceased Per

sons.

The title of a purchaser under a sale on a decree of foreclosure, cannot be impeached in a collateral action, for irregularity in the proceedings on the sale.

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

This is an action of ejectment, to recover a lot situated in the city of San Francisco. It appears, from the record, that Thaddeus M. Leavenworth occupied the premises from some time in 1849 until March, 1850, when he conveyed them to Mitchell. In September, of the same year, Mitchell conveyed them to Wright, who, in November following, conveyed them to Evans. On the receipt of his conveyance, Evans executed a mortgage to Leavenworth, as security for the payment of $923, and interest, within ninety days, and took possession of the premises, and occupied them from that time until March, 1851, when, not having paid any portion of the principal or interest upon the mortgage, he surrendered the possession to Leavenworth.

In May, 1851, Leavenworth commenced a suit in the District Court of San Francisco county, to foreclose the mortgage, and, upon the confession of Evans, judgment was entered for the amount due, and for the sale of the mortgaged premises. Evans died in March, 1852, and after his death, a certified copy of the