62 P. 788 | Or. | 1900
after stating the facts, delivered the opinion of the court.
Although the two appeals in this case were argued and submitted separately, they, will be considered as one, for the purposes of the opinion of the court.
Decided 11 March, 1901.
On Motions to Recall Mandate.
On May 6, 1898, the plaintiff obtained a decree in a suit to foreclose a mortgage against the defendants Kern for some $57,000, besides costs and disbursements. On June 17 the mortgaged property was sold to the plaintiff, upon execution issued on the decree, for several thousand dollars less than the amount due thereon. The sale was confirmed on July 12, and on September 6 the defendants appealed from the decree foreclosing the mortgage, and on such appeal gave an undertaking, with the Fidelity & Deposit Compan3f as surety, conditioned that “the appellants will pay all damages, costs, and disbursements which may be awarded against them on appeal, and, further, that, during the possession by said appellants of the said mortgaged premises so decreed to be sold, they will not commit or suffer to be committed any waste thereon, and if such decree, or any part thereof, be affirmed, will pay the value of the use and occupation of said premises, so far as affirmed, from the time of the appeal until the delivery of the possession thereof, not exceeding the sum of $2,000, fixed and ascertained by the said court; also that said appellants will pay any portion of such decree remaining unsatisfied after the sale of the said premises covered by the said mortgage, or which now re
I. The mandate should allow to respondent the $2,000, fixed by the trial court as the value of the use of the mortgaged premises pending the appeal: Hill’s Ann. Laws, § 538. The trial court heard testimony on this point and ordered “that said value be fixed at $2,000,” whereupon the surety undertook to pay “the value of the use and occupancy of said premises so far as affirmed from the time of the appeal until delivery of the possession thereof, not exceeding the sum of $2,000 fixed by the court.” There was no fraud and no misunderstanding about the matter, and the surety should be compelled to comply with the bond.
II. On the question of the liability of the surety for the deficiency, the statute distinctly provides that on an appeal from a foreclosure decree the appellant must give a bond to pay any deficiency remaining after the sale of the mortgaged property: Hill’s Ann. Laws, § 538. The case in 9 Or. 338, relied on by the surety, is not in point, because there
I. The intention of Hill’s Ann. Laws, § 538, subd. 2, was to require the trial judge to' limit not fix the amount to be recovered for the use of the mortgaged premises during the time of the appeal. To hold otherwise would subject the surety to a greater liability than the principal, for the latter can be held for only the reasonable value of the use, regardless of the order of the trial court.
Judgment must be given for the entire $2,000, or the matter must be left to an action at law, since this court has no means of ascertaining the reasonable value of the use and occupation: Northwest, etc., Bank v. Griffits, 17 Wash. 98 (50 Pac. 591); Blair v. Cassim, 19 Wash. 127 (52 Pac. 1011).
A statute similar to ours has been construed to mean that the amount of the bond fixed by the trial court applies as well to the deficiency as to the value of the use and occupation, and under that rule the total recovery against the surety here cannot exceed $2,000: Boob v. Hall, 105 Cal. 413 (38 Pac. 977); Ogden v. Davis, 116 Cal. 32 (47 Pac. 772); Gerald v. Gerald, 30 So. Car. 348 (9 S. E. 274).
Furthermore, the giving of this bond did not stop the levy of an execution; the property had been sold before the bond' was given, and under Section 307, Hill’s Ann. Laws, the purchaser was entitled to possession. If so, then there was no consideration for the bond, the payment of the deficiency being a condition on which the sale of the mortgaged property is stopped.
II. Section 538, Hill’s Ann. Laws, provides the method
A further examination of section 538 seems to show very clearly that it was intended to secure to the successful party the payment of his judgment, but was not intended to give him also the value of the use and occupation of the mortgaged premises, unless he has been kept out of that possession by having the sale prevented. The section seems to have been drawmwith the idea that the security is worth the debt, and if the mortgagor desires to prevent a sale of the property he must give a bond conditioned to pay any deficiency, thereby enabling him to retain possession of his mortgaged premises. In other words, this agreement to pay any part of the judgment remaining unsatisfied after the sale of the mortgaged premises, is intended as a condition for restraining the sale; but manifestly this cannot apply where the sale has been held, for in that case the successful party is absolutely entitled to possession under section 307, and is further entitled to issue an execution and proceed to levy on other property, unless the appeal bond contains the provision set forth in subd. 1, to wit: “That if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed.” That provision is the one which the statute has provided for all cases where there is a money judgment, and it is desired to stop the levy of an execution generally.
The decree part of the final order had been executed and the sale had been confirmed, so that no appeal could stop that; but the enforcement of the balance due on the personal judgment could be stopped only by giving the bond described in section 538, subd. 1, which was not done. The appeal was perfected by guaranteeing payment of the expenses, and unless the rest of the undertaking had some consideration, it is void: Bank of British Columbia v. Page, 9 Or. 338.
The bond in question here is a bond in the sum of $2,000, and the recovery ought not to exceed that sum: Boob v. Hall, 105 Cal. 413 (38 Pac. 977); Ogden v. Davis, 116 Cal. 32 (47 Pac. 772); Douglas v. Skipworth (Tenn.), 38 S. W. 450.
after stating the facts, delivered the opinion of the court.
Motions Overruled.