Oregon-California Livestock Co. v. McDonald

CURTIS, J.

This action was instituted to recover on three promissory notes, executed by the defendants L. L. McDonald and B. L. McDonald and secured by a mortgage

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upon certain real property and personal property. The mortgage was executed by the defendants above named and by defendant Mary E. McDonald, in favor of defendant J. W. Seimens. The plaintiff became the owner thereof by assignment through the said Seimens. The real property described in said mortgage consisted of a quarter-section of land in Modoc County, and the personal property therein described consisted of 229 head of cattle and their increase. The action was dismissed as to defendant Seimens for the reason that no personal service of summons has been made upon him. While the defendant Mary E. McDonald did not sign either of said promissory notes as maker thereof or otherwise, she did sign and execute the mortgage given to secure same, which, after referring to the principal amount secured by said mortgage, with interest and charges and attorneys’ fees, contains a further covenant reading as follows: “And we do for ourselves, our heirs or assigns (do) covenant and agree to pay all of said sums of money hereinbefore mentioned. ’ ’

The action was tried and the court below rendered judgment for the amount due on the promissory notes, with costs and attorneys’ fees, and for the foreclosure of the mortgage, directing the sale of the real property described in the mortgage and the application of the proceeds of the sale to the satisfaction of the judgment, but declined to render personal judgment against said defendants or any of them.

Plaintiff, the appellant, contends in the first place that it is entitled to a personal judgment against the defendant Mary E. McDonald under and by virtue of the provisions of the mortgage quoted above to the same extent and in the same manner as if she had with her co-defendants signed the original promissory notes. From the view we take of the case it will not be necessary for us to decide this point.

The court found in pursuance to the allegations of the answer of the defendants, that in November, following the execution of the promissory notes in April, 1923, the plaintiff agreed with defendants that if they would deliver to plaintiff the possession of said livestock mentioned in the mortgage and concede to plaintiff the ownership of said stock, it would release said defendants from all personal