23 P. 552 | Idaho | 1890
(After Stating the Facts.) — The alleged grounds ■of error, mostly occurring on the trial in the findings of the ■court, in refusing a new trial, and in the judgment, will more fully hereafter appear. The case was. tried by the court without ■a jury. The evidence received upon the trial was introduced and given without objection. Being so given, the question of its admissibility, if objected to, does not arise. The complaint shows the note to have been past due when transferred by Shaw, the payee, to the president of the plaintiff; that on the same day he transferred it to his bank; and that both transfers were by ■“assignment.” Whatever equities existed in favor of the appellant against the note, or the right to sue upon the note in the hands of the original payee, continued to exist against it in the hands of this plaintiff. It is proper, then, in the outset, to inquire as to the rights of the appellant, as against the original payee of the note. The obligations of Shaw will be considered as equally the obligations of the plaintiff. On the trial, when the plaintiff had rested his case, the appellant, the defendant below, called John P. Vollmer, who testified that he had been president of the plaintiff corporation “ever since the bank was •organized”; identified the note; and, on being shown another paper, said: “That is a mortgage executed by defendant Leiand to A. J. Shaw, the payee named in this note. I notice there is no seal of party executing it on this mortgage. It is in the same condition, as to execution and acknowledgment, as when I received it from Mr. Shaw. It may have been at the time I had transaction with Mr. Shaw that I noticed lack of seal. I never mentioned or said anything to Williams about there being any ■defect in the mortgage.” Mortgage introduced in evidence by ■appellant. Alonzo Leiand testified: “This is the note executed by me to A. J. Shaw. This is my signature. The other signature is that of Williams. I am principal debtor on the note. Williams signed it as surety only; and it was signed by Mm on condition that I should execute, to secure the payment of the note, a valid first mortgage upon real property. That was a condition of his signing the note. That condition was known also by Mr. Shaw, the payee of that note, and the agreement was
There was no evidence in any way controverting either of' these facts. Each was within the issues made by the pleadings. The judge in his findings, though specially requested by the defendant, refused to find upon either of these facts, except the-fact that the mortgage to secure the note was, at Williams’ request, given by Leland. To this refusal to find (1) as to the conditions on which the defendant Williams became a maker of the note, also as to the connection of Shaw with that agreement,, and signing of the mortgage; (2) as to the condition of the mortgage as to seal, and what lands it was upon; (3) as to the-knowledge of the plaintiff, in becoming the successor of Shaw in the ownership of the note — the appellant excepted. This raises the question of the materiality of the issues involved in the points;, or any of them, on which the judge refused to find. The description and amount of lands covered by the mortgage-are shown in that exhibit, as well as its object to secure this note. The evidence, as we have seen, will warrant findings only as-claimed by the appellant. Contrary findings on either point,, upon the evidence, could not be made. Those points are: 1. Was Williams only a surety upon that note ? 2. Did Shaw, in taking that note, know what relations Williams held to it? 3., And for what purpose the mortgage was executed ? And did he become a party thereto, by knowing the agreement between the-
The appellant further contends that the court below erred in striking out a part of the answer, in effect as follows: “That since the execution and delivery of the mortgage by which the note herein sued upon is secured, and since the recording of said mortgage, that two mortgages, still valid and existing, have been executed and delivered by the defendant Leland — one of said mortgages to John P. Yollmer, president of the First National Bank of Lewiston, plaintiff herein; and the other of said last-named mortgages to the plaintiff herein,” aggregating $1,600 in amount, and “covering the lands herein described” (the lands in the Leland mortgage), “both of which were recorded prior to the commencement of this action”; and that said lands are not
But the plaintiff was the holder of the note, and of a valid mortgage on real property to secure the same; yet instead of bringing an action to foreclose the mortgage, and for any balance that might remain after applying the proceeds of sale upon the sum due on the note, as he might have done, he filed his complaint against both of the defendants on the note alone, but had summoned only the surety on the note, and proceeded for a money judgment against him alone. This he had no right to do, not only because it was his duty to exhaust the securities of the principal debtor in his hands, placed there specially as a prior security, to protect the defendant, but also because the statute denies another action, by any party, for the foreclosure of the mortgage.
Section 4520 of the Revised Statutes of Idaho provides: “There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. In such action the court may, by its judgment, direct a sale of the encumbered property, and the application of the proceeds of the sale to the payment of the costs of the court, and the expenses of the sale, and the
There are no other provisions in that chapter affecting this case. As we have seen, the mortgage was valid, and it is not pretended that the security is valueless. The appellant claims that, upon a note so secured, an action ignoring the mortgage cannot be sustained; and cites Bartlett v. Cottle, 63 Cal. 366. In that case the court holds “that, in such case as the one at bar, an action cannot be maintained on the note alone, unless the security is valueless.” In that ease also the value of the security appears to have been in issue, and it was not shown to be without value. This was decided under section 726 of the California Code of Civil Procedure, which substantially eorre-i sponds with the Idaho statute above quoted. Vandewater v. McRae, 27 Cal. 596, was an action by the holder of a note, secured by a mortgage on real estate, against indorsers of the note. Commenting upon the statute in question, the court in that ease say: “The words [in the statute] ‘'secured by mortgage’ are descriptive of the right or personal liability contemplated by the section, and any personal liability not so secured is manifestly without its purview.A mortgage which, by its terms, is made applicable to the promise of the maker only, can in no just sense be regarded as collateral either to the personal liability or to the ‘right’ of which the contract of indorsement is the source.” The judgment in that case, for the reason that the defendants’ contract was not that of makers of the note so secured, but was that of indorsers only, and so was not secured, was against the indorsers. But the doctrine of Bartlett v. Cottle, supra, is fully recognized.
There can be no question in the case at bar, that the mortgage was given to secure the note, for the safety of the- appellant. So, in Ould v. Stoddard, 54 Cal. 613, it was held that where a mortgagee had prosecuted an action in Ohio to final judgment, upon a note secured by a mortgage on lands in California, he could not maintain, in the latter state, an action for foreclosure, for the reason that under this statute there can
The judgment in the court below, and the order overruling motion for a new trial, must be reversed. Judgment reversed, and new trial ordered.