Ashcroft Estate Co. v. Nelson

THE COURT.

This is an action to foreclose a chattel mortgage. The plaintiff and defendants were respectively lessor and lessees of premises under a written instrument, for the performance of the conditions of which the chattel mortgage was given as security. The defendant W. Henderson, who is the appellant here, held a second mortgage on the personal property forming the subject of the chattel mortgage involved in this action. The court gave judgment foreclos

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ing both chattel mortgages, and found that appellant’s mortgage was subordinate to that of the plaintiff. The appeal is from the judgment and from the order denying appellant’s motion for a new trial.

The sole question in this case is whether a lessor may maintain an action for the foreclosure of a chattel mortgage given to secure the faithful performance of the covenants and conditions of a lease, where prior to the institution of such action the lessor has recovered a judgment in an unlawful detainer proceeding for restitution of the premises, forfeiture of the lease, and for the sum of four hundred and sixteen dollars, the actual amount .due for the rent of the premises involved, and where this breach of the lease, viz., the nonpayment of rent, is the basis of both actions.

Section 726 of the Code of Civil Procedure provides in part that “There can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property.” If the unlawful detainer action may be regarded as one for the recovery of a debt, then plaintiff under this section of the code must be held to have waived the security of the chattel mortgage. It seems clear, however, from the authorities that an action of unlawful detainer must be regarded as having for its purpose primarily the recovery of the possession of real property, and that the part of the judgment recovered therein declaring the lease forfeited and awarding damages is merely incidental, so that such action cannot be classed as one for the recovery of a debt.

(Toplitz

v.

Standard Co.,

25 Cal. App. 575, [143 Pac. 52] ;