Banfield v. Marks (1880) · DecisionDepot

Banfield v. Marks

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 6,683Published

Before: McKinstry

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Holding. The court held that the defendants' contract to prevent a personal judgment against the mortgagor was breached when such a judgment was entered, and the plaintiff was entitled to recover the value of the equity of redemption transferred as consideration for that promise.

Issues

Whether a complaint alleging a breach of a contract to prevent a personal judgment states a cause of action without alleging prior payment of the judgment by the plaintiff.
Whether the defendants' failure to prevent a personal judgment against the mortgagor constitutes a breach of contract entitling the plaintiff to damages.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The contract of defendents amounted at least to a covenant to discharge or acquit the mortgagor from any personal judgment on the foreclosure of plaintiff’s mortgage.”

“The breach was well assigned by the averment that personal judgment had in fact been entered against the mortgagor”

“The equity of redemption assigned by the mortgagor to defendants was valued by the parties to that assignment at a sum equal to the amount of any personal judgment which might be entered against the mortgagor.”

Synopsis

Appeal from a judgment for the plaintiff in the Thirteenth District Court, County of Merced. Campbell, J.

The facts are stated in the opinion.

McKinstry, J.; The complaint is in substance as follows ;

The above-named plaintiff, complaining of the above-named defendants, alleges:

“ That on or about the first day of September, 1877, the said defendants entered into the following contract, in writing, with A. C. McSwain, to wit;

[186]‘ For value received, we hereby agree with A. C. McSwain, that when the mortgage of Mrs. Margaret Banfield against him is foreclosed, if there should be any forclosure, that we will see that no personal judgment is taken against him. That is, we will see that the land, if sold under such decree of foreclosure, sells for sufficient to pay the amount due her from said mortgagor, under the terms of said mortgage.

C. II. Marks,

Jno. F. McSwain.

Merced, Cal., Sept. 1st, 1877.’

“ That the consideration expressed in said contract as valuable was the conveyance by deed from the said A. C. McSwain to the said C. H. Marks and John F. McSwain, the defendants herein, the following-described real estate, situated in the County of Merced, State of California, to wit: ”

Here follows a description of the lands.

“That the mortgage referred to in said contract as ‘the mortgage of Mrs. Margaret Banfield against him ’ was a mortgage which the plaintiff herein, at the time, to wit, September 1st, 1877, held against the said A. C. McSwain, in words and figures following, to wit: ”

And here is recited the mortgage at length.

“ That on the 15th day of November, 1877, the said Margaret Banfield commenced an action in this Court to foreclose said mortgage, and that, afterwards, to wit, on the 29th day of March, 1878, the said Margaret Banfield did obtain from this Court a decree of foreclosure and personal judgment against said A. C. McSwain in said action, which said decree of foreclosure and sale is in words and figures following, to wit: ”

And then follows the decree at length, with a statement of certain subsequent proceedings, and then the averment.

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The contract of defendants was, that no personal judgment should be taken against the assignor of plaintiff; and further, that the land mortgaged, if sold under a decree foreclosing the Banfield mortgage, should sell for sufficient to pay the amount due upon that mortgage. These promises were based upon a valuable consideration; to wit, a transfer of the equity of redemption. By such transfer, the assignor of plaintiff paid defendants to prevent any personal judgment against him. lie afterwards found that he was liable for, and if able must pay, the judgment which defendants had agreed to pay for him. We speak advisedly in saying defendants had agreed to pay it for him, in case such judgment should be entered. It was their bounden duty to sec to it that the property brought a sum sufficient to pay off the mortgage, by bidding, if necessary, at the sale; but if they neglected to do this, it would be substituting [188]apparition for substance, to say that it was not also their duty to pay the personal judgment for the balance. It would certainly be a defense to this suit that defendants had satisfied the judgment. Their contract was that no personal judgment should be entered. They could perform it literally only by becoming (or causing some one else to become) the purchaser at the foreclosure sale for a sum equal to the amount of the mortgage, or by paying to the mortgagee the difference between the sum for which the sale was made and the amount of the mortgage, interest, and costs before the personal judgment was entered. They could perform it substantially by satisfying the judgment after it was entered.- The equity of redemption assigned by the mortgagor to defendants was valued by the parties to that assignment at a sum equal to the amount of any personal judgment which might be entered against the mortgagor. So far, the amount of damages which the assignor of plaintiff might sustain by reason of a breach by defendants was liquidated by the contract itself. The equity of the mortgagor has been foreclosed, and cannot be recovered; its stipulated value may.

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Synopsis

C. II. Marks,

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