85 P. 120 | Ariz. | 1906
Peter L. Kastner brought suit against the
Fashion Livery Company and others to foreclose a chattel mortgage. From a judgment in his favor granting him inadequate relief, as he contends, plaintiff has appealed, seeking to have the judgment extended in its scope.
There are but two questions involved in the case: 1. Whether the mortgage in question by its terms covers after-acquired property; 2. Whether the plaintiff is entitled to personal judgment against the Fashion Livery Company.
The portion of the mortgage which must be construed reads as follows: “That the said mortgagor mortgages to the said mortgagee all that certain personal property situated and described as follows, to wit, being all the property now used and hereafter being used in the business of the Fashion Livery Sta
The court did not enter personal judgment against the Fashion Livery Company. Appellant contends that he is entitled to have the judgment extended so as to include such personal judgment. Among the findings of fact are the following: Finding 12. “That on April 11, 1903, . . . the defendant the Fashion Livery Company purchased the interest of Hobbs & Storm, in and to all the property used in said business . . . subject to the provisions of the mortgage herein; and thereupon on that day the said Hobbs & Storm executed and delivered to the said Fashion Livery Company a bill of sale including all the property comprised in and used in said livery business, and contemporaneously therewith the said Fashion Livery Company entered into the possession of all of the said property and assumed the said mortgage.” Under our practice a mortgagee may, in a foreclosure suit, join as a party defendant a grantee of a mortgagor who has assumed the payment of the mortgage debt, and may recover a deficiency judgment against such grantee. Johns v. Wilson, 6 Ariz. 125, 53 Pac. 583; same case, affirmed, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613. Appellees contend that the plaintiff could not recover personal judgment against the Fashion Livery Company by reason of his failure to pray for such judgment. Plaintiff prayed for a foreclosure of the mortgage in question and a judicial sale of the mortgaged property. He concludes his prayer as follows: “That plaintiff have such other, further, or different relief as may be meet and proper in the premises.” It is not necessary to consider whether this prayer is broad enough to support a personal judgment, in the absence of a statute prescribing the scope of the judgment. Under our statute this prayer is sufficient to obtain personal judgment against a defendant who has appeared in the action, if the facts alleged and proved disclose that he is personally liable for the debt. Paragraphs 3275, 3277, and 1428, of the Eevised Statutes of 1901, provide, respectively, as follows:—
*29 “3275. When a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. An execution shall issue accordingly, and the sale thereunder shall be subject to the redemption as in the cases of sale under execution.”
“3277. If the mortgaged property does not sell for sufficient to satisfy the execution, an execution may be issued for the balance against the mortgagor in all eases where there has been personal service or the defendant has appeared in the action, unless the parties have stipulated otherwise.”
“1428. The judgment of the court shall conform to the pleadings, the nature of the case proved, and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.”
The Fashion Livery Company appeared in the action. The court’s finding that this company “assumed the said mortgage” should be interpreted as a finding that it assumed the payment of the debt secured by the mortgage. Under these statutes and this finding of fact, the plaintiff should have personal judgment against this company for the amount of the indebtedness proved and should have execution thereunder for the deficiency, if any, after the application to the debt of the proceeds from the sale of the mortgaged property, if the allegations in his complaint tender an issue under which this finding of fact could properly be made. An examination of the complaint discloses that the only allegation therein involving the Fashion Livery Company in the case is “that the defendant the Fashion Livery Company (and other defendants) now claim, hold out, and assert that they are the owners of all the right, title, interest, and equity of redemption in and to the said mortgaged property formerly held and owned by the said H. K. MacDonald as aforesaid, the nature and extent of which said right, title, and interest, and equity of redemption ... is subsequent and subject to the mortgage lien in and to the property therein mentioned”; and, further, that this company now has in its possession certain of the mortgaged property. There is no allegation in the complaint that the Fashion Livery Company assumed the payment of the mortgaged debt, or in the language of
The judgment is affirmed.