Good v. Brown

BURNETT, J.

The appeal is from a judgment of foreclosure of a mortgage on real estate. On the twelfth day of June, 1912, the defendant George E. Brown delivered his promissory note in the sum of one thousand dollars, payable ninety days after date, to the plaintiff, and to secure its payment executed a chattel mortgage upon certain personal property. Defendant Cynthia Brown was not a party to this note or mortgage, and when this suit was brought no action had been taken toward enforcing said chattel mortgage, and it existed as a valid lien on said personal property. Thereafter, on February 27, 1914, both of said defendants executed the real estate mortgage to secure the payment of this note. The land is community property, and prior to the execution of said mortgage the said defendant Cynthia Brown had executed and recorded, in due form, a declaration of homestead on said property.

The foregoing facts are undisputed, and in addition it is claimed by appellants that, when the real estate mortgage was signed by Cynthia- Brown, it was agreed that the mortgagee would first exhaust the security on the personal property before resorting to the real estate mortgage.

The contentions of appellants are these: First, respondent was required to exhaust the personal property security before resorting to the foreclosure of the real estate mortgage

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second, Cynthia J. Brown was a surety on the second obligation, and by virtue of section 2850 of the Civil Code she had a right to demand that the property of the principal, that is, the personal property, be first applied to the discharge of the obligation, or, at least, by reason of the homestead, such was in effect the situation; and, third, by virtue of said agreement, plaintiff was obligated to resort first to the personal security.

As to the last of these, it may be dismissed with the statement that plaintiff testified positively that there was no such agreement, and we are bound by the finding to that effect.

The other contentions may be considered together, and to understand them fully some additional facts should be stated. Before the real estate mortgage was executed, Good became dissatisfied with the chattel mortgage security and notified Brown that unless further security should be forthcoming he' would be compelled to take possession of said personal property and dispose of it. Good testified as to this: “Well, I got Mr. Brown into the store and told him that it was absolutely necessary that I foreclose this chattel mortgage unless I was given additional security, because the stock was getting older every day and being much abused by the work given them and my security was not sufficient. He at that time made a promise to me that he would give me a mortgage on a piece of property with his wife’s signature to it. Later he brought the mortgage in and delivered it to me in my office at Clovis and I recorded it.” The following questions and answers indicate the nature of Mrs. Brown’s connection with the transaction: “Q. (By the Court.) Mrs. Brown, why did you sign the mortgage? A. Simply because I wanted to get this money to go on with the grain and harvest and to do summer-fallowing. Mr. Brown gave us to understand that there was only between six or seven hundred on the thousand. If I signed it Mr. Good was to put up barley and groceries and summer-fallow the land. My husband told me this. Q. You signed it upon your husband’s statement to you that Mr. Good would furnish three hundred dollars more over the amount that was for the purpose of buying provisions? A. Yes.”