Gutzeit v. Pennie
Before: Harrison
Synopsis
Foreclosure of Mortgage — Appeal—.Stay of Execution—Bond fob Deficiency. — A bond to stay execution pending an appeal from a judgment of foreclosure of a mortgage must provide for the paymént of any deficiency arising upon the sale; and a bond given by a mortgagor upon such appeal, merely for the costs of appeal, and against waste pending the appeal, is insufficient to stay the execution of the judgment.
Id. —Fixing of Bond to Stay Waste. — The provision of section 945 of the Code of Civil Procedure requiring the trial judge, in an action of foreclosure of a mortgage, to fix the amount of the undertaking against waste required to be given when the judgment directs the sale or delivery of the mortgaged property, is distinct from the clause requiring that the undertaking must also provide for the payment of a deficiency, and the authority of the judge to fix the penalty of the undertaking is limited to the object named in the clause in which it is granted, and cannot dispense with the undertaking for a deficiency.
Id.—Reference in Bond to Provisions for Stay.—An undertaking upon appeal by a mortgagor from a judgment directing the foreclosure of the mortgage and the entry of a deficiency judgment, which, after reciting the order of the court fixing the amount of the undertaking required against waste, provides that the surety, in consideration thereof, binds himself in the sum named that the appellant will not commit waste, renders the surety liable only upon proof that waste has been committed; and a subsequent clause in the undertaking, that it is given in compliance with the provisions oí section 945 of the Code of Civil Procedure, which requires the undertaking to provide for the payment of the deficiency, does not extend its effect beyond the condition for which it was executed.
Id.—Rights of Junior Mortgagee — Enforcement of Judgment — Insufficient Undertaking — Waiver. —When, in an action of foreclosure brought by the holder of a prior mortgage, a junior mortgagee, who is made defendant, interposes suitable pleadings, and has the amount of his mortgage determined and provision made in the judgment for a sale and payment of his mortgage debt, such junior mortgagee has the same right to have the judgment executed as though he had himself instituted the action, and does not waive his right to the enforcement of the judgment, pending an appeal by his mortgagor, by not objecting to the insufficiency of an undertaking to stay execution at the time it was given.
Harrison, J. Motion for a writ of supersedeas.
The plaintiff brought this action for the foreclosure of a mortgage executed by one Palmer upon certain lands in Santa Clara County. After the execution of the mortgage, Palmer conveyed the property, and thereafter died. The defendants in the action are persons who have acquired an interest in the mortgaged premises under Palmer subsequent to the date of the mortgage. Palmer’s grantee made an agreement with the appellant, Radovich, for a conveyance of a portion of the mortgaged premises, under which Radovich entered into possession, and thereafter made a mortgage of said premises to the respondent, Chielovich. Chielovich, in addition to his answer to the plaintiff’s complaint, set up this mortgage by way of a cross-complaint against Radovich, and issue was joined thereon by Radovich. The court rendered judgment in favor of the plaintiff for the amount of his claim and for a sale of the prerm ises, and also in favor of Chielovich for the amount of [486]his claim against Radovich, and directed that out of the proceeds of said sale the sheriff, after paying the claims of the plaintiff and certain other prior liens, — amounting in the aggregate to about thirty-three thousand dollars,— should, if there were any surplus proceeds in his hands therefor, pay to Chielovich the' amount of his claim against Radovich, and if the surplus proceeds therefor were insufficient to make such payment, judgment should be docketed in his favor against Radovich for the deficiency. Radovich appealed from the whole of the said judgment, making both the plaintiff and Chielovich respondents, and gave an undertaking in the sum of three hundred dollars for the costs of appeal, and also an undertaking in the sum of ten thousand dollars against waste, that amount having been fixed by the judge of the court. The undertaking against committing waste, after reciting the order of the judge fixing the amount, is, that the surety, “ in consideration thereof and of the premises, does undertake and promise, and does acknowledge itself bound in the sum of ten thousand dollars, that during the possession of such real property by the appellant he will not commit, or suffer to be committed, any waste thereon, and does undertake and promise that this undertaking for a stay of proceedings herein is given in compliance with the provisions of section 945 of the Code of Civil Procedure of the state of California, and in conformity to the order of court in this connection, as aforesaid.” After the appeal had been taken, Chielovich caused an order of sale to be issued upon the judgment, and placed it in the hands of the sheriff for execution, and the sheriff being about to sell the premises under said order of sale, Radovich applied to this court for a writ of supersedeas pending the appeal, and urges in support thereof that the undertaking given by him is sufficient to stay the execution of the judgment.
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