SIMON B. BENNETT, Respondent, v. NELSON TAYLOR and others, Appellants

SIMON B. BENNETT, Respondent, v. NELSON TAYLOR and others, Appellants. 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. Appeal from the District Court of the Fifth Judicial District, San Joaquin County. Howard & Perley, for Appellants. L. Sanders, Jr., for Respondent. No authorities were cited by counsel. [MAJORITY — Murray, C. J., delivered the 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.