Bennett v. Taylor

California Supreme Court
Bennett v. Taylor, 5 Cal. 502 (Cal. 1855)
Murray

Bennett v. Taylor

Opinion of the Court

Murray, C. J., delivered the 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.