65 Cal. 512 | Cal. | 1884
—1. By the conveyance from Kroeckel to plaintiff of the former’s interest in the mortgaged premises (of the date of the 9th of November, 1876), plaintiff became tenant in common with defendant, in the lands and premises described in the complaint, the premises continuing charged with the lien of the three thousand dollar mortgage executed to plaintiff by Kroeckel and defendant on the 2d day of September, 1875.
It was found by the court below that on the 15th day of December, 1876, plaintiff conveyed the estate and interest in the land and premises, so as aforesaid conveyed by Kroeckel to him, to one Hiram M. Jones. Jones was a necessary party to an action to foreclose the three thousand dollar mortgage because the owner of the legal title' (equity of redemption at common law) is a necessary party to any foreclosure of a mortgage executed by his grantor.
If the arrangement alleged in the complaint to have been made between plaintiff, defendant Muller, and Kroeckel, was not made, or did not operate to release the lien of the three thousand dollar mortgage, the judgment of the court below must be reversed. There can be but one action for the recovery of any debt secured by mortgage, and the proceeds of a sale of the whole of the mortgaged premises constituted the primary fund out of which the three thousand dollar debt secured by the mortgage was to be paid. (Code Civ. Proc. § 726.) We cannot order that the judgment be modified so as to direct that the mortgaged premises be sold, because Jones—the owner of the undivided moiety of the equity of redemption—who is a necessary party to a bill to foreclose the mortgage, has not been made a party herein.
2. Are facts alleged in the complaint, and found by the court, which make the defendant personally liable for the whole amount of the three thousand dollar debt?
The complaint avers: “ That at the time the said plaintiff became the owner of the said George Kroeckel’s interest in said
In finding x. the court found that it “was mutually agreed and arranged between the plaintiff, the said George Kroeckel and the defendant Muller,” that the plaintiff “ would also lease to said defendant Muller for the farming year of 1876-77, his portion of said premises, so conveyed to him by Kroeckel, for one eighth, of all the grain to he raised upon the whole of said premises described in the complaint, and theretofore belonging to said Kroeckel and Muller,” etc.
And in finding xi. the court found: “The plaintiff also leased on that day to said defendant Muller, his portion of said premises so to him conveyed by said Kroeckel, for the farming
Findings twelve and thirteen read: “XII. That on the 9th day of November, 1876, there.were about two hundred and sixty acres of said‘premises already plowed and seeded, which sowing gave promise of a crop and was supposed to be valuable; that the said Kroeckel was then the owner of an undivided one-half interest in said crop as the partner of said Muller; that the lease by plaintiff to said Muller of his (plaintiffs) interest in the said land and crop to him granted by Kroeckel, for one eighth of the whole crop, was a very favorable and desirable one for said Muller, and valuable, and was by him so understood at the time of the making thereof, and said Muller then considered and expected that he would make sufficient from said lease to indemnify him for his liability upon the three thousand dollar mortgage mentioned in the sixth finding hereof) and for the payment of the whole thereof.”
“ XIII. That at the time of such settlement and arrangement and agreement by and between plaintiff, the said George Kroeckel, and said defendant Muller, in the tenth finding hereof mentioned, and long prior thereto, the defendant Muller was aware of the foreclosure proceedings by plaintiff against said Kroeckel in said court, and in the eighth finding mentioned, and it was on said 9th day of November, 1876, considered by said Muller and Kroeckel that if said proceedings were carried to final judgment and foreclosure sale, the said interest of Kroeckel in the premises mentioned in the complaint herein would not be more than sufficient to satisfy said judgment, and it was also understood that said settlement would be to the benefit of both of said parties, and the said Muller was then informed and understood that his interest in the said premises was liable for the payment of the whole of the note, and the mortgage sought to be foreclosed by this action, under the lien of said mortgage, and that he, said Muller, would have to pay the same.”
In all the elaborate findings there is nothing that can possibly be construed a finding that defendant Muller agreed to assume the sole payment of the three thousand dollar note unless it be discovered in the last words quoted; that Muller wnderstood he “would have the same to pay.” If he had expressly agreed orally that his co-tenant’s share of the land should be relieved of the mortgage, and that his own share should bear the whole burden, such oral agreement would have been of no effect. “ A mortgage can be created, renewed, or extinguished, only by writing” with certain formalities. (Civ. Code, § 2922.)
The last clause of the finding thirteen cannot be construed as a finding that he agreed to pay the whole of the three thousand dollar note as part consideration for the occupancy of plaintiff’s share of the land. He was “ informed and understood ” that he would have to pay the note; he was so informed when the “ settlement” was made; that is, he was informed and understood that, as a consequence of the settlement and of the
It follows that appellant is entitled to a new trial.
Judgment and order reversed and cause remanded for a new trial.
Hearing in Bank denied.