Epperson v. Cappellino

MARKS, J.

This is an appeal from a judgment foreclosing a mortgage in the principal sum of $7,250 executed by the respondents Joe Cappellino and Anna Cappellino, his wife, to the plaintiffs. Appellant purchased a portion of the mortgaged premises from Cappellino and wife after the execution and recordation of the mortgage. The court ordered all of the mortgaged property sold to satisfy the indebtedness.

It is the contention of appellant that the decree of foreclosure should have ordered the Cappellino property sold first, and if its sale did not yield enough to satisfy plaintiffs’ demand that appellant’s property should then be sold under the doctrine of the inverse order of alienation as recognized by section 2899 of the Civil Code.

As the facts in the case are somewhat involved it will be necessary to detail them in order to get a clear view of the reasons for the judgment of the lower court in refusing to apply the doctrine of the inverse order of alienation in its decree of foreclosure. The plaintiffs have not appeared in this appeal so we will hereafter refer to the defendants, Joe Cappellino and Anna Cappellino, as the respondents, and to the defendant, J. C. Eiley, as the appellant.

The evidence discloses that respondents were the owners of the mortgaged premises situated in Los Angeles County. Subsequently to the execution and recordation of the mortgage they agreed to sell a portion of the mortgaged premises to L. M. Moore who made a payment on the purchase price in the sum of $1500 and partially constructed a house on it which in its uncompleted condition was of the reasonable value of $3,000. Moore defaulted in his payments and permitted various liens to be filed for labor and materials used in the construction work.

[475]

On April 8, 1926, respondents and Hersie Mau entered into an agreement for the purchase by Mau, for the sum of $18,500, of the property formerly sold to Moore. As part of the consideration for the sale, Mau agreed to secure the release of all mechanics’ liens upon the property, the dismissal of litigation pending between Moore and respondents and to secure a release from Moore of all claims against respondents, and his quitclaim deed to respondents of the property in question. Mau agreed to pay the purchase price of $18,500 as follows: The sum of $3,000 in cash obtained by a mortgage on the property being purchased, executed by respondents to P. M. Reidy, which mortgage Mau agreed to assume and pay; by a credit of $1500 paid by Moore on account of his prior purchase of the premises; a further credit of $3,000, the value of the partially completed house erected by Moore; the sum of $3,750 in cash to be paid in installments as provided in the contract; and by the payment of the Epperson mortgage in the sum of $7,250 which Mau agreed to assume and pay. The effect of this agreement of purchase was that Mau was to receive a credit on the purchase price of the property and thereby respondents were to pay to her the full amount of their indebtedness to .the plaintiffs. From this fact, together with the fact that Mau agreed to assume and pay the mortgage to the plaintiffs, she would become the principal debtor and the property being purchased by her would become primarily liable for the payment of this indebtedness.