Bennett v. Taylor
California Supreme Court
Bennett v. Taylor, 5 Cal. 502 (Cal. 1855)
Murray
Bennett v. Taylor
Opinion of the Court
Heydenfeldt, J., concurred.
The Court below erred in permitting the plaintiff to introduce the mortgage in evidence, without first producing or accounting for the note.
The mortgage was a mere incident to the debt; and in order to maintain the action, which was founded on the plaintiff’s possession and the mortgage, the debt should have been proved.
In other respects, the rulings of the Court were correct, and the case properly tried.
Judgment reversed and new trial ordered.
Reference
- Full Case Name
- SIMON B. BENNETT v. NELSON TAYLOR and others
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- A mortgage is a mere incident to a debt, and in order to maintain an action founded on the mortgage, the debt must first he proved. In this case the Court therefore erred in permitting the plaintiff to introduce the mortgage in evidence, without first producing or accounting for the note.