Engelman v. Bookasta

SHINN, J.

*

The appeal is from an order denying a motion of defendant Bookasta for discharge of an attachment. The ground of the motion was that the attachment had been irregularly and improperly issued. Appellant has advanced no sound reason for questioning the order denying his motion. We believe the court ruled correctly and that we must affirm the order.

In the hearing on the motion appellant contended, and he here contends, that the debt upon which the suit was brought was secured by a deed of trust upon real property and an

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assignment of rents and, therefore, was not an obligation on which suit could be brought and an attachment could issue under section 537, subdivision 1 of the Code of Civil Procedure.

The facts were the following: Plaintiffs are a partnership doing business under the fictitious name of Mortgage and Equity Investment Company. The partnership is the payee of a note in the original sum of $100,000 issued by Orange Empire Productions, Inc., and the beneficiary of a trust deed on real property and an assignment of rents given as security for payment of the note. Appellant executed an agreement of guaranty by which he agreed to pay the note according to its terms. The action is upon this agreement; the amount of the attachment is $94,567.38 and it was levied upon real property of appellant.

Since no distinction exists between the rights of sureties and guarantors (Civ. Code, § 2787), appellant, as a guarantor, had the right of a surety granted by sections 2845 and 2849 of the Civil Code to require the creditor to proceed against the principal or pursue any other remedy in his power the surety could not himself pursue, and he was entitled to the benefit of every security for performance of the principal obligation held by the creditor. These rights were waived by appellant in a written agreement of guaranty in the following language: “I hereby waive, for myself and for all other persons, (a) demand and protest, (b) all right to assert or plead at any time any statute of limitations as or relating to the written instrument, and (c) any right to require the holder of the within instrument to proceed against the maker or against any other person or to apply any security it may hold, or to proceed to first exhaust any security it may hold or to pursue any other remedy.' ’