Hogan v. Horsfall

TYLER, P. J.

Suit in equity to set aside a deficiency judgment obtained in an action for the foreclosure of a mortgage. The bill contains three counts. Under the first it is alleged, in substance, that the property sold by the commissioner was, by reason of an error in the description, not the property he was authorized to sell under the foreclosure decree, hence there could be no valid deficiency judgment. The second is the same as the first, with the exception of the statement that the error in the description was intentional and was therefore a fraud. In the third it was alleged that there was an agreement between the parties not to take a deficiency judgment and the taking of the same was, therefore, likewise a fraud on the plaintiffs. A demurrer to the complaint was sustained without leave to amend and judgment was entered thereon from which

[40]

judgment this appeal is taken. No application was made by plaintiffs to amend and the questions involved in the appeal are whether or not the trial court erred in sustaining the demurrer to the complaint and to each cause of action thereof, with or without leave to amend. In reciting the facts of their cause of action, plaintiffs have set forth that defendant Horsfall was the plaintiff in another certain action in the superior court for the county of Lake, wherein plaintiffs were defendants, which was an action for the foreclosure of a mortgage upon a certain piece of real property given to secure the payment of a promissory note for the sum of $2,000, signed by the plaintiffs herein. The mortgage given contained a recital that it was subject to a first encumbrance of $3,700 payable to one Frederica Meyer-stein, which made the mortgage in question a second lien. On the fifth day of November, 1924, the court made a decree of foreclosure in the mortgage foreclosure action and defendant Crawford was appointed as commissioner to sell the real property described in the decree. Thereafter Crawford, as such commissioner, published a notice of sale and sold said real property to defendant Horsfall for the sum of $10 and thereupon issued a certificate of sale conveying the property to him. On the eighth day of January, 1925, there was entered in said action a deficiency judgment against plaintiffs herein for the sum of $3,287.16. It is then recited that the property sold was not the property Crawford was authorized to sell under the decree of foreclosure and hence no valid deficiency judgment could have been entered against the plaintiffs in that action. The correct description of the property involved is the southwest quarter and the southeast quarter of the northwest quarter of section 33 in township 12 north, range 6 east, Mount Diablo base and meridian; and lot number 3, the east half of the southwest quarter and the west half of the southeast quarter of section 4 in township 11 north, range 6 west, Mount Diablo base and meridian, containing in all 393 acres of land, more or less. The complaint shows that the property was correctly described in the mortgage, complaint,