Civ. No. 396. | Cal. Ct. App. | Jan 23, 1908
Lead Opinion
The action was brought to set aside the release and satisfaction of a certain chattel mortgage and to have said mortgage, given by said defendants to one Wallace Dinsmore, determined and declared to be in full force and effect and to have plaintiffs adjudged to be the owners and holders of said mortgage and the note secured thereby and entitled to the full payment of all the sums so secured, and also to have said mortgage foreclosed.
The relief sought by the complaint, involving as it does "equitable subrogation" and foreclosure, is a matter peculiarly of equitable cognizance and the appeal should not have been taken to this court.
The cause is transferred to the supreme court.
Hart, J., and Chipman, P. J., concurred.
On the sixth day of January, 1908, the cause was retransferred by the supreme court to this court for determination, and on the 23d of January, 1908, the following opinion was rendered:
Addendum
Respondents in their petition for rehearing state that they "assign as their grounds for a rehearing herein certain matters which existed with relation to said cause at the time of the hearing, and which were not plainly set forth in the record." As a matter of fact they were not set forth in the record at all, and, of course, cannot be considered by us. *471
It is claimed that this action was not instituted until the property subject to the chattel mortgage had been released from attachment in pursuance of a bond; and that said undertaking was in the sum of $700, while the amount of the judgment in the original action was $867.40, and that the said property is not now subject to execution in that action, and therefore respondents' only remedy to secure reimbursement for the payment of the amount due on the mortgage is to be subrogated to the rights of the mortgagee. No reason is stated why the amount of the undertaking is so small nor why the property was not returned to the sheriff or its full value paid to plaintiffs as contemplated by section 553 of the Code of Civil Procedure. However, it inferentially appears in the petition that the original judgment was paid, plaintiffs probably satisfying it upon the theory that subrogation would lie for the $1,508.
These additional matters of equitable cognizance stated and implied in the said petition are of persuasive force, but they are outside of the record and would not justify us in granting a rehearing; but as the cause was ordered back for a new trial we can see no reason why plaintiffs should not be permitted to amend their complaint, setting up the additional facts which in their opinion render the remedy provided by the statute inadequate or inoperative. In case this is done and the judgment should be for respondents, we invite the consideration of the learned trial judge to the question whether the amount recovered should not be limited to the amount actually paid out by plaintiffs, with the legal rate of interest.
The rehearing is denied.
Chipman, P. J., and Hart, J., concurred. *472
Addendum
On the eighth day of August, 1904, plaintiffs brought suit against defendants for the sum of $591 and interest. Thereupon a writ of attachment was issued and placed in the hands of the sheriff of the county of Yuba for service. He was directed to attach certain personal property belonging to defendants upon which there was a chattel mortgage in favor of one Wallace Dinsmore to secure the payment of a promissory note for $1,500. The sheriff, acting in view of section 2969 of the Civil Code, declined to levy the writ of attachment on said property unless the plaintiffs should pay or tender to the said mortgagee or deposit with the county clerk or treasurer of said county payable to the order of said mortgagee the amount due on said mortgage. The plaintiffs thereupon deposited with the said county clerk, in accordance with said demand, the sum of $1,509.35. Thereafter, on August 11, 1904, the clerk paid said sum to the said mortgagee, who entered upon the record in the county recorder's office the usual acknowledgment of satisfaction and discharge of said mortgage. Upon the payment of said money by the plaintiffs to the clerk the sheriff levied the said writ of attachment upon said property. The action was afterward tried and judgment rendered in favor of plaintiffs *467
for the sum of $659.86 and costs. An appeal was taken to this court and the judgment was affirmed. (Carstenbrook v.Wedderien,
From this judgment and order denying their motion for a new trial defendants have appealed.
Appellants admit that plaintiffs are entitled to be reimbursed for the amount paid on account of said mortgage, but they contend that the only recourse is through the attachment suit. It is declared in their brief: "They have obtained their judgment in that action and should proceed to have execution issued out, levied upon the property in question and then have it sold in accordance with section
We think appellants are clearly right in their contention. The subject is a matter of statutory regulation, and we must look to the provisions of the statute for the course to be pursued. "Equitable subrogation" implies that there is no adequate remedy at law, but here the remedy is not only adequate, but it is plain, simple and speedy. Indeed, it is difficult to understand why plaintiffs should have resorted to the foreclosure suit, unless the purpose was to secure an attorney's fee and to make conditions as burdensome as possible for defendants. The statute, certainly, does not contemplate that in such a case the property shall be sold twice, once under foreclosure of the mortgage and again under execution to satisfy the judgment in the other action. Section 2969 of the Civil Code provides upon what conditions personal property *468
which is mortgaged can be taken, either under attachment or execution, as follows: "Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the mortgagee." Assuming that this has been done, we find the provision for the reimbursement of the attaching creditor in the next section (2970) as follows: "When the property thus taken is sold under process, the officer must apply the proceeds of the sale as follows: 1. To the payment of the sum paid to the mortgagee, with interest from the date of said payment; and 2. The balance, if any, in like manner as the proceeds of sales under execution are applied in other cases." It would be a dangerous doctrine to hold that where the statute provides one remedy, another may be adopted that is not so provided. Respondents' construction would compel the interpolation into said section
It is obvious that said section is intended to furnish the exclusive method for the reimbursement of said creditor as the preceding section prescribes the condition by compliance with which he may, under process, take possession of the property.
The procedure taken in the case at bar imposes an unjust burden upon the defendants, and we are satisfied that it is not contemplated by the said act of the legislature.
It is no answer to say that the defendants are not prejudiced for the reason that they would have to bear the expense of foreclosure in case the mortgagee had brought suit on his mortgage.
This view ignores the obvious intent of the legislature to avoid this expense in the event of attachment. Besides, it is manifest that the probable result of a sale would be quite different in the case of foreclosure where the property is free from any other lien from that presented here where the property is in the possession of the sheriff under other process and subject to execution to satisfy another judgment.
The authorities cited by respondents to justify the course pursued in the court below simply illustrate the application of the well-known principle of equitable subrogation, but they *469
are not in point here where the statute has pointed out the legal remedy. The scope of Redington v. Cornwell,
In Shaffer v. McCloskey,
The supreme court, through Mr. Justice McFarland, properly said: "Respondent clearly intended that his payment of the mortgage should inure to his own benefit, and not to the benefit of appellants; and there is no equitable ground upon which appellants can object to it so inuring. They were not led astray by the payment of the prior mortgage, and are left in the exact position which they expected to occupy when the trust deed was taken."
Randall v. Duff,
In Brown v. Rouse,
The other authorities cited by respondents are in line with the foregoing, and we see no necessity for reviewing them in detail.
Of course, if it appeared that the proceedings in the attachment suit were invalid or so defective that the property could not be legally sold under an execution upon the judgment, a different case would be presented and it would probably be brought within the principle of Randall v. Duff,
The judgment and order are reversed.
Hart, J., and Chipman, P. J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal, on February 22, 1908, and the following opinion was then rendered: