Los Angeles Trust & Savings Bank v. Bortenstein

FINLAYSON, P. J.

This is an action to foreclose a mortgage on real property. Herman Bortenstein and the city of Los Angeles are defendants. Bortenstein alone appeals from the decree of foreclosure. The chief question on the appeal is whether plaintiff has any lien, legal or equitable, upon certain moneys that, in another action, were adjudged to be due from the city to Bortenstein for injury to the mortgaged property. Bortenstein filed a demurrer to

[422]

the complaint in the present action. The demurrer was overruled, he was given ten days to answer, and, failing to answer, his default was entered. The city filed an answer admitting all the allegations of the complaint.

It appears from the complaint and recitals in the foreclosure decree that, originally, the mortgaged property, together with an adjoining strip of land ten feet wide, were owned by one Clarke and wife. The Clarkes, while the owners of the mortgaged property, mortgaged it to plaintiff to secure the payment of a promissory note for six thousand dollars executed by them to plaintiff as the payee. Thereafter the Clarkes conveyed the mortgaged property to Bortenstein, subject to the mortgage. At the same time they conveyed to Bortenstein the adjoining ten-foot strip of land. Thereafter the mortgaged property, together with the buildings thereon, and the adjdining ten-foot strip, were greatly damaged by a flood. The buildings on the mortgaged property were carried off by the flood waters and the surface of the land was washed away. Bortenstein, who had become the owner of the premises under his grant from the mortgagors, claiming that the city was responsible for the destructive effects of the flood, brought an action against the city wherein he recovered a- judgment for damages. In that action Bortenstein sued not only for damage to the real property that the Clarkes had previously mortgaged to this plaintiff, but also for damage to the adjoining ten-foot strip and to certain personal property that was on the premises at the time of the flood. The judgment against the city was for the total sum of twelve thousand five hundred dollars. By its judgment in that action the court adjudged that the bare land itself, without the improvements, was damaged in the sum of one thousand five hundred dollars; that the buildings and improvements on the mortgaged property were damaged in the sum of ten thousand dollars, and that the personal property was damaged in the sum of one thousand dollars. The plaintiff here was not a party to that action. By its decree of foreclosure in the present action the trial court found that the damage to the personal property and to the ten-foot strip is 229/2500 of the total amount of damage to all the property so owned by Bortenstein, and that the damage to the property covered by plaintiff’s mortgage is 2271/2500 of the total damage sustained by all the property. The