Rastelli v. Zaca Mining Corp.

THE COURT.

This is an appeal from an order setting aside a sale of property made after foreclosure of a mortgage.

On April 1, 1939, respondent borrowed $9,000 from and gave them a promissory note secured by an instrument designated a “Real and Chattel Mortgage.” The

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property was listed therein under two heads. Under the heading of “Real Property” twenty-six mining claims were described. Under the heading of “Personal Property” the following: “All buildings, and improvements located on the above described property or that may be erected thereon, together with all and singular the appurtenances, hereditaments, water and water rights, pipes, flumes or ditches thereunto belonging, or in anywise and the reversion and reversions, remainder and remainders, the rents, issues and profits thereof, including the mill thereon, or other machinery or equipment now to be found in or about said property, a partial list of which will be found in the inventory hereto attached and marked A. . . . To Have and to Hold all and singular the said premises, together with the appurtenances and personal property hereinabove set forth.” In Exhibit A were listed numerous tools and other articles such as are commonly used in working lode claims. This instrument was executed with all the formalities required of both real and chattel mortgages.

On June 17, 1941, appellants commenced an action to the mortgage. The complaint contained no allegation characterizing the property as either real or personal but a copy of the mortgage was attached as an exhibit and made a part thereof by reference. Respondent answered, admitting the allegations of the complaint, and set up a counterclaim. No findings appear in the record but it is conceded that the court found against respondent on its counterclaim and that there was no express finding as to the character of the as realty or personalty.

The decree was in the usual form for the foreclosure of mortgages of real property and all the property mentioned therein was listed together, without segregation of any kind, and was referred to as “the

lands and premises

directed to be sold.” (Italics added.) The sheriff was directed to sell “so much thereof as may be sufficient to raise the amount due to the plaintiffs . . . and which may be sold separately without material injury to the parties interested ... in the manner prescribed by law, and according to the course and practice of this Court” and “after the time allowed by law for redemption has expired, to execute a deed to the purchaser or purchasers of the mortgaged premises.” There appears to have been no separate order of sale but no point is made because of this departure from the usual practice.