Ewing v. Richvale Land Co.

This is an appeal by defendant Rich-vale Land Company from a deficiency judgment entered by the clerk of the superior court on the coming in of the commissioner’s return in an action to foreclose a mortgage executed by appellant to' plaintiff.

It is alleged in the complaint in the action: That the defendant company executed and delivered to plaintiff two certain promissory notes each for $4,593; that plaintiff is the owner and holder of said promissory notes, neither of which, nor any part thereof except certain interest on one of said notes, has been paid; that to secure payment of said notes defendant company executed and delivered to plaintiff its mortgage on certain described land, describing it, which was duly acknowledged and recorded; that defendant Jones claims some interest in said land, but that such interest is subordinate to said mortgage; that by the terms of said mortgage a reasonable attorney’s fee was allowed for the foreclosure, should foreclosure become necessary.

Upon the foregoing averments the prayer of the complaint is: That plaintiff have “judgment against defendant [Rich-vale Land Company] in the sum of”—stating the amount of each note together with interest thereon; for attorney’s

The rights of defendant Jones are not involved and he does not appeal.

The answer of defendant Richvale Land Company admits all the averments of the complaint except as to attorney’s fees, and as to that the denial is that one thousand dollar's is a reasonable fee. The cause came on for trial December 21, 1915, and a minute order was made, which stated, among other things: “Matter submitted to the court and the court orders that a decree be entered for the plaintiff of foreclosure and counsel fees at five hundred dollars.” On the twenty-fifth day of February, 1916, the court made and entered its decree. It is entitled, “Decree of Foreclosure”; recites that the cause came on to be heard December 21, 1915, both oral and documentary evidence was submitted, and “the court now finds the following facts”; that defendant Richvale Land Company is a corporation duly organized; that it executed and delivered to plaintiff the promissory notes set out in the complaint, and “that the plaintiff ever since has been and still is the owner and holder of said promissory notes and that neither the sum mentioned therein, nor any part thereof, has ever been paid,” nor any interest except as stated; that defendant Richvale Land Company executed the mortgage mentioned in the complaint to secure payment of said notes and described the property mortgaged; that said mortgage provided for the payment

The findings of fact here end. It is then stated: “It is hereby ordered, adjudged and decreed that a judgment be ent'ered against the defendant Richvale Land Company in the sum of $4,593, with interest at the rate of ten per cent per annum from the first day of March, 1914, and for the sum of $4,593, with interest at the rate of six per cent per annum from the first day of March, 1913, to the first day of March, 1915, and at the rate of ten per cent per annum from the first day of March, 1915. For attorney’s fees in the sum of five hundred dollars and for all costs of suit and sale.” It is further stated: “That said mortgage be foreclosed and that said defendant Richvale Land Company, a corporation, be foreclosed of all right, claim, or equity of redemption of its interest in said mortgaged premises, or any part thereof, and that John Myers be and he is hereby appointed a commissioner to conduct said sale and apply the proceeds thereof to the payment of said notes, interest, attorney’s fees, and costs of suit and sale and that before qualifying as such commissioner, the said John Myers give a bond in the sum of dne hundred dollars.” The commissioner duly made return of his proceedings, from which it appeared that there was a deficiency of $6,617.30 after disposing of the proceeds of the sale in accordance with the decree. The clerk made the following entry in judgment docket: “Judgment for deficiency of $6,617.30 as shown by commissioner’s return of sale.”

It will appear from the foregoing that the findings of fact are a part of the decree and that no conclusions of law as such are stated. In the paragraph, immediately following what purport to be findings of fact, is the order and decree. There is no provision in the decree for entering a deficiency judgment.

It is upon this condition of the record that appellant makes the following contentions: “1. Section 726 of the Code of Civil Procedure, providing for foreclosure of mortgages of realty, does not give the clerk power to docket a deficiency judgment unless a judgment is entered adjudicating the defendant personally liable for the debt. 2. The fuere recital, preceding the judgment, or as contained in the judg

The provision of section 726 touching the question here is as follows: “If it appear from the sheriff’s return, or from the commissioner’s report, that the proceeds are insufficient, and a balance still remains due, judgment must then be docketed by the clerk in the manner provided in this code for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases in which execution may be issued.”

It is undoubtedly true, and the cases all so hold, that the deficiency judgment contemplated by section 726 can only be docketed by the clerk “against the defendant or defendants personally liable for the debt,” for such is the express language of the statute. (Scamman v. Bonslett, 118 Cal. 93 , [ 62 Am. St. Rep. 226 , 50 Pac. 272 ]; Herd v. Tuohy, 133 Cal. 55 , [ 65 Pac. 139 ]; and among the earlier cases may be cited Cormerais v. Genella, 22 Cal. 116 ; Leviston v. Swan, 33 Cal. 480 .) In the case last cited the court stated what is still true, for the forty-sixth section of the Practice Act was substantially the same, so far as concerned the deficiency judgment, as is section 726 as we now have it. The court, speaking of the judgment in a foreclosure case, said: “All that it need or should contain is a statement of the amount due the plaintiff, a designation of the defendants who are personally liable for the payment of the debt, and a direction that the mortgaged premises, or so much thereof as may be necessary, be sold according to law and the proceeds applied to the payment of the expenses of the sale, the cost of the action, and the debt. Nothing further is required. All else is ministerial and is expressly regulated by the statute, which is not made clearer or more binding by being copied into the judgment. . . . Under our system, the sheriff is furnished with a certified copy of the judgment. Armed with this process, he proceeds to sell the mortgaged property in the mode and manner, and at the place designated in the

Herd v. Tuohy, 133 Cal. 55 , [ 65 Pac. 139 ], is relied on by appellant. That was a foreclosure case in which the defendant recovered judgment against the plaintiff for the foreclosure of a mortgage. It was stated by the court in its opinion: “In the judgment as originally entered, there was no adjudication that the plaintiff was personally liable, or provision for a deficiency judgment against him.” On an ex parte application of defendant’s attorneys, the judgment was amended by adding thereto a paragraph adjudging the plaintiff to be personally liable on the mortgage, and that on the commissioner’s return of the sale, deficiency judgment should be docketed against him; and accordingly such a judgment was docketed against him. This action was brought to obtain relief against this judgment as amended- and the deficiency judgment entered thereon and resulted in a judgment for plaintiff, in effect canceling both judgments. The appeal was from this judgment. Among other points, appellant urged: “That, the complaint does not purport to set forth all of the original decree, and non constat that it was sufficient to authorize a deficiency judgment.” Said the court: “As to the second point, the complaint purports to set out the whole judgment, but in fact, as appears from the findings, does not do so. But the omitted portions contain no provision for a deficiency judgment; nor is there any adjudication that • the plaintiff (then defendant) was personally liable, unless, as claimed by appellant, the following recital' may be so considered, viz.: ‘That the interest on said note to November 30, 1895, has been paid; that no other part of said note, principal or interest, has been paid; and there is now due and owing to the plaintiff from the defendants John Herd, Jr., and R. Linder on said note the sum of $91,101.85, etc., and that the said defendants John Herd, Jr., and R. Linder are personally liable . . . for said sums so found due from them to plaintiff as aforesaid. ’

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 20, 1918.