Porter v. Muller

The Court. —1. By the conveyance from Kroeckel to plaintiff of the former’s interest in the mortgaged premises (of the date of the 9th of November, 1876), plaintiff became tenant in common with defendant, in the lands and premises described in the complaint, the premises continuing charged with the lien of the three thousand dollar mortgage executed to plaintiff by Kroeckel and defendant on the 2d day of September, 1875.

It was found by the court below that on the 15th day of December, 1876, plaintiff conveyed the estate and interest in the land and premises, so as aforesaid conveyed by Kroeckel to him, to one Hiram M. Jones. Jones was a necessary party to an action to foreclose the three thousand dollar mortgage because the owner of the legal title' (equity of redemption at common law) is a necessary party to any foreclosure of a mortgage executed by his grantor.

If the arrangement alleged in the complaint to have been made between plaintiff, defendant Muller, and Kroeckel, was not made, or did not operate to release the lien of the three thousand dollar mortgage, the judgment of the court below must be reversed. There can be but one action for the recovery of any debt secured by mortgage, and the proceeds of a sale of the whole of the mortgaged premises constituted the primary fund out of which the three thousand dollar debt secured by the mortgage was to be paid. (Code Civ. Proc. § 726.) We cannot order that the judgment be modified so as to direct that the mortgaged premises be sold, because Jones—the owner of the undivided moiety of the equity of redemption—who is a necessary party to a bill to foreclose the mortgage, has not been made a party herein.

2. Are facts alleged in the complaint, and found by the court, which make the defendant personally liable for the whole amount of the three thousand dollar debt?

The complaint avers: “ That at the time the said plaintiff became the owner of the said George Kroeckel’s interest in said [514]real property, to wit, on November 9,1876, there was, as plaintiff is informed and believes, about two hundred acres of the said real property which had been plowed in the spring of 1876 for summer-fallow, and about eighty acres of which was good volunteer ground; that about two hundred and fifty acres of said real property had then already been sown and cultivated into grain, all of which had been done in a good husbandlike manner, gave good prospects for the coming crop, and was of great value for the farming season of 1876 to 1877 to said real property; that thereupon, in consideration that the said Christ. Muller would give to said plaintiff the one eighth part of all the grain to be produced for said farming season upon the whole of said real property, and would at his own cost and expense sow and cultivate, and furnish seed for all that remained unsown of said land, and at the proper time, and at his own cost and expense, head, thresh, and harvest said crop, and that the said plaintiff might look to said Christian Muller, defendant herein, .alone, for the payment of the promissory note sued upon in this action and in subdivision 2 herein mentioned, and that said Christian Muller’s interest in said real property should alone be subjected as security to the payment thereof, the said plaintiff leased to said Christian Muller his interest (acquired by the grant aforesaid), in the said real property for the farming season of 1876 to 1877; and upon the conditions aforesaid the said Christian Muller accepted the said lease and entered into the sole and exclusive possession of all said real property, to have and to hold unto him, the said Christian Muller, until the end of the farming season aforesaid:”