18 Utah 11 | Utah | 1898
In this case it appears that the defendants borrowed of the plaintiff the sum of $6,000, and evidenced the same by their, note secured hy a trust deed. Upon failure of payment, the property given as security was sold, under the power in the deed, and the proceeds applied in payment of the note. This left a balance of $2274.67, asa deficiency, to recover which the plaintiff instituted this suit.
Two questions are presented on this appeal: First, after sale, under a power in a trust deed, can an action at law be maintained for a deficiency ? Second, was the notice of sale sufficient under the terms of the trust deed ?
As to the first point, counsel for the appellants contend
The proceedings of foreclosure are then indicated, and while, under the statute, but one action can be maintained on the original debt secured by mortgage, still we apprehend that it was not the intention of the legislature to prohibit the bringing of an action, on a deficiency, simply because the debt, out of which the deficiency was derived, was so secured. Nor does such intention appear from the context. Because but one action can be maintained to recover a debt secured by mortgage, it does not follow that no action can be maintained to recover a balance due which remains unsecured. The object of the statute doubtless is to compel the mortgagee to exhaust his security before having recourse to the general assets of the debtor. The balance or deficiency, after it has been properly ascertained, whether by sale under a power or by foreclosure in equity, constitutes a subsisting indebtedness as well as did the original debt. In other words, the deficiency constitutes a right in the creditor as against the debtor, and to this right the maxim, ubi jus ibi remedium, is applicable.
We are therefore of the opinion that, in a case like the one- at bar, the amount realized by sale under the power may properly be treated as a payment on the note, and that the creditor may, by action at law, enforce payment of the balance remaining unpaid and unsecured. Jones on Mortgages, sec. 950; 4 Kent. Comm. 183; Blumberg
The second point contended for, by counsel for the appellants, is not tenable. The proof shows that the notice of sale was first published in a newspaper on the 25th day of June, 1895, and continuously thereafter to and including the 25th day of July; that the paper was issued in the morning of each day; and that the sale was made at noon on July 25,1895. The publication of notice was sufficient under,the terms of the trust deed which required “thirty-day previous notice of sale” to be given “by publication, in any newspaper” before making sale. We discover no error in the record. ' The judgment is affirmed.
