No. 13692 | Cal. | Jul 10, 1891
— There are appeals in this case from a judgment in favor of plaintiff foreclosing a mortgage, from an order refusing defendants’ motion for a new trial, and also from an order of the court denying the motion of defendants to set aside a sale of the mortgaged premises made under an execution in the action.
The mortgage covers separate parcels of land in what is known as Ontario Colony, and contains a provision by which the mortgagees agree to “ release from the lien of this mortgage those parts, portions, or subdivisions of said' mortgaged premises designated on said plat of said town of Magnolia as fronting on Euclid Avenue, upon the payment to said parties of the sum of $200 for each of said lots; all lots fronting on First, Second, and Third streets, north of D Street, upon the payment to them of $120 for each of said lots; all lots fronting on First, Second, and Third streets, north of D street, upon the payment to them of $140 for each of said lots; all lots fronting on Fourth Street, upon payment to them of $90 for each of said lots; and all lots fronting on Fifth and Sixth streets, and Camper’s Avenue, upon the payment to them of $80 for each of said lots.”
Appellants claim that the unsubdivided blocks, 33 and 25, are lots within the meaning of that part of the mortgage above quoted, and so subject to release, in accordance with its terms.
1. The word “ lot ” may undoubtedly be so used in a conveyance as to mean the entire premises conveyed, whether such premises consist of a farm, or even a block in a city. But the ordinary meaning of this word, when used with reference to town or city property, is a subdivision of a block according to the map or survey of such town or city, and there is nothing upon the face of this mortgage to indicate that it was used in any different sense by the parties thereto. The map of the town of Magnolia is expressly referred to, and for the purpose of construing the mortgage must be deemed a part of it. This map shows that there are town lots fronting upon all the streets named in that part of the mortgage relating to releases; and as these answer or satisfy the description given to the parcels subject to release, the mortgage must be construed as referring to them, and the amount to be paid for the release of each lot refers to a town lot as designated on the map, and not to an entire block. To hold that block 33 is a lot would enable the defendants to secure its release upon payment of the same sum as is provided for the release of the one thirty-second part of the adjoining block 34; and while it would have been competent for the parties to have made such an agreement, the intention to do so is not to be inferred from the use of a word which, in ordinary acceptation, as applied'to town property such as this, conveys a different meaning.
2. The judgment in this case did not mention the
The record shows that the attorneys for the defendants directed the officer making the sale to sell the lots separately, and also the order in which they should be sold. These directions were disregarded, and the defendants subsequently moved the court to set aside the sale because of the failure of the officer to follow such instructions. The motion was denied. This ruling of the court was erroneous. The process under which the judgment in this class of cases is enforced if provided for in section 684 of the Code of Civil Procedure, and the subsequent section, 694, which is a part of the same chapter, dealing with the general subject of the execution of judgments, is applicable to sales of real property under judgments of foreclosure; and when, as in this case, the judgment is silent as to the manner or order in which the separate parcels shall be sold, the judgment debtor has the right to require that separate lots or parcels shall be sold separately, and may also direct the order in which they shall be sold.
The Practice Act, in force prior to the adoption of the Code of Civil Procedure, contained a chapter relating to the execution of judgments in civil cases, substantially the same as the one upon the same subject in the Code of Civil Procedure, and in the case of Leviston v. Swan, 33 Cal. 480" court="Cal." date_filed="1867-10-15" href="https://app.midpage.ai/document/leviston-v-swan-5436457?utm_source=webapp" opinion_id="5436457">33 Cal. 480, it was held that a decree of foreclosure need not contain any special directions as to the mode or place of sale, because such matters are regulated by law, and that by virtue of process to enforce such a judgment the sheriff is required “to sell the mortgaged property in the mode and manner and at the place designated in the Practice Act for the sale of real estate under judicial process, and make a return of his proceedings, as in the case of an execution upon a money judgment.”
Judgment and order denying motion for new trial affirmed. The order refusing to set aside the sale of
McFarland, J., Paterson, J., Harrison, J., and Garoutte, J., concurred.