90 Cal. 147 | Cal. | 1891
This action was to foreclose a mortgage upon certain real property. The case comes here on appeal from, the judgment rendered as prayed for, for the sale of the mortgaged premises, and in case of a deficiency arising from said sale, for the deficiency balance as against the defendants. Mrs. Eddy, one of the defendants, does not appeal.
The mortgage was made to secure certain promissory notes executed and delivered in favor of George and Olive Scoville, who have assigned the same to the plaintiff, Jones.
Verch 'and Sanborn, wrho are the appellants here, were the purchasers from Mrs. Eddy, of her interest in the mortgaged premises.
Among other things, the court, in its fourth finding of fact, found from the pleadings that when Verch and Sanborn bought her interest they “ assumed and agreed to pay said notes and mortgage according to the terms thereof, which, assumption and agreement was made with said Jemima Eddy, and said assumption and agreement was to the benefit of George Scoville andwlive Scoville, and on said twenty-seventh day of October, 1887, said interest of Jemima Eddy in said premises was, by her deed bearing date on that day, and since recorded in book 321 of deeds, page 287, of said Los Angeles County records, conveyed by said Jemima Eddy, together with P. G. Eddy, her husband, to defendants E. Verch and A. J. Sanborn jointly, who are now in possession of said premises, except lot 12 hereinafter mentioned, since released from the operation of said mortgage.”
The appellants claim that they ought not to be held liable for a deficiency over and above what the mortgaged premises may bring at foreclosure sale.
There would be no difficulty in affirming the judgment here, if finding 4 was justified by the pleadings. (Pellier v. Gillespie, 67 Cal. 583.)
The appellants say that such finding, most of which we have heretofore quoted herein, is not sustained by
If the averments in the answer were in the conjunctive, evasive, and raised no issue, they would come under the rule laid down in Doll v. Good, 38 Cal. 290; and the trial court would have decided correctly in finding the allegation of the complaint to be true.
But that tribunal has come to this conclusion by holding that where it is said in the complaint the defendants “ assumed and agreed ” to pay the mortgage debt, that they undertook to do two separate and distinct things essential to make them responsible to pay the mortgage debt, if the property resting under the mortgage lien was insufficient for that purpose.
We cannot see that there is any difference whatever, in this instance, in saying that they “ undertook and agreed” to pay the debt, from saying that they “ássumed and agreed ” to pay it. There is only one proposition contained in the words “ assumed and agreed,” as here employed. The assumption to pay the debt is, as used here, the same thing as agreeing or undertaking to pay it, and the use of both words, “assume and agree,” is, as employed, no more the statement of two distinct propositions, than if it had been stated that they “ agreed and agreed ” to pay the debt.
For these reasons, we think the finding is wrong, and that the judgment is erroneous, so far as the defendants’ liability for a deficiency is concerned, and we advise that it be reversed.
Temple, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion, the judgment is reversed.
Hearing in Bank denied.
