National Bank of the Republic v. Hapgood

| Utah | Jun 15, 1893

Bartch, J.:

This is an action to foreclose a mortgage given to secure a note for $1,000. The note was given by defendant Hapgood to defendant Thompson. Thompson assigned the note to defendant Christian, who assigned it to plaintiff. Thompson and Christian guaranteed payment. After this suit was commenced, Christian paid the note to plaintiff, and this action was continued in the name of plaintiff for the benefit of defendant Christian. A decree of foreclosure was made, and the mortgaged premises ordered sold. Defendant Burmester was a purchaser subject to the mortgage. Defendant Hapgood appeals from the judgment.

The only question presented by this appeal is whether, after defendant Christian paid the debt to plaintiff, it could prosecute the action to judgment for her benefit. Section 3187 of the Compiled Laws of Htah (volume 2, p. 233)' is as follows: “An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceeding survive or continue. * * * In the case of any transfer of interest the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." This section corresponds to section 385 of the California Code. This section of the California Code has been construed by the supreme pourt of that state in cases similar to the one at bar. See Mastick v. Thorp, 29 Cal. 446, which was an action concerning real estate, and the title was transferred pending suit; yet a recovery was permitted to stand in the name of the vendor for the benefit of his vendee. In the. case of Moss v. Shear, 30 Cal. 468, the same court held that this section of the California Code not only allowed a recovery of the land sued for in the name of the original plaintiff,'but also permitted a recovery of rents and profits, after the sale, and up to the day of trial. This latter would appear to be a much more doubtful case than the one at bar. To the same effect are the cases of Hestres v. Brennan, 37 Cal. 385" court="Cal." date_filed="1869-07-01" href="https://app.midpage.ai/document/hestres-v-brennan-5436892?utm_source=webapp" opinion_id="5436892">37 Cal. 385, and O’Neil v. Dougherty, 46 Cal. 576" court="Cal." date_filed="1873-07-01" href="https://app.midpage.ai/document/sherman-v-mitchell-5438130?utm_source=webapp" opinion_id="5438130">46 Cal. 576. We adopted this section.of the California Code after the construction given in the above cases had been made. We are inclined to follow this construction. There is no error in the record, and the judgment is affirmed, with costs to respondent.

Minee, J., concurred.