Sacramento Bank v. Copsey

GAROUTTE, J.

Defendants executed a trust deed for the purpose of securing the payment of a promissory note in favor of plaintiff. The trustees, after breach in the condition of the deed, sold the land, and credited the amount received from the sale upon the note, less the costs of the sale. Plaintiff then brought the present action to recover the balance due upon the note. Judgment went against it, and this appeal is prosecuted therefrom.

As indicated by an opinion found in appellant’s brief, the trial court seemed to hold that plaintiff must look alone to the land described in the trust deed for the satisfaction of its note, and this position is now maintained by respondents’ counsel. No case is cited to support this proposition of law, other than

Koch

v.

Briggs,

14 Cal. 261,

1

and that case fails to do so. The question was not there involved, and the language relied upon does not go to the lengths here claimed. Upon the contrary, it seems that both upon principle and authority the law is the other way. Indeed, the case of

Howard

v.

Ames,

3 Met. 311, cited by respondents as to another proposition, is directly opposed to their claims in this regard. It is there said: “The specific property in such case is appropriated to the payment of the specific debt, so that the money to be realized from the sale would operate,

ipso facto,

as payment of the debt, without any further act or agreement of the parties. If, then, an action is brought against the debtor for the balance of that specific debt, it seems to us that it is a good answer to show that if the pledged property had been fairly managed and properly sold, it would have been sufficient to pay the whole debt, and that there would have been no balance due.” In

Mallory

v.

Kessler,