Treat v. Dorman
Before: Searls
Synopsis
Appeal by Successful Party—Relief Not Prayed for—Intendments in Support of Judgment.—Upon an appeal from a judgment upon the judgment-roll alone without a bill of exceptions, where it appears that the party appealing was granted all the relief he asked, his contention that he was entitled to other relief consistent with the case made by his pleadings and embraced within the issues cannot be considered, every intendment being in favor of the regularity of the judgment.
Mortgage—Growing Crops—Rights of Subsequent Mortgagee of Crops—Segregation.—A mortgage purporting to convey the land with the “rents, issues, and profits thereof” covers not only the land, but the growing crops as well, and gives the mortgagee the abstract right, upon foreclosure, to have the entire property sold; yet as between the mortgagee and a subsequent mortgagee of the crops alone it is proper for the court, at the request of the latter, to segregate the crops in order that the surplus, if any, after satisfying the sum secured by the prior mortgage, may be applied to the extinguishment of the subsequent mortgage.
Searls, C. This action was brought to foreclose a mortgage for thirty-five thousand dollars and interest, executed July 8, 1891, in favor of plaintiff, by Emery D. Howe and Ellen D. Thurber, upon a ranch situate in Contra Costa county. The mortgage purported to convey the land, etc., with the “rents, issues and profits thereof,” and was acknowledged and duly recorded July 10, 1891.
The Earl Fruit Company (a corporation) held a subsequent chattel mortgage executed in due form July 20, 1892, upon the “ crops of fruits and grapes now growing [624]and to be grown during the seasons of 1892 and 1893, upon the same ranch, and which was recorded July 21, 1892. ”
The Earl Fruit Company was made a defendant in the action, and filed an answer and cross-complaint, in the latter of which it set up its chattel mortgage, and averred there was due thereon eight hundred and eighty-two dollars and sixty-five cents, for which sum it prayed judgment against the mortgagor defendants, and that it be declared a lien upon the “ fruit and grape crops of 1893, and prayed further that if plaintiff’s mortgage be declared a lien, that the premises be sold separately from the fruit and grape crop of 1893, and that the said fruit and grape crops be next sold and the proceeds thereof, after the payment of any deficiency due the plaintiff, be paid to this cross-complainant upon the said indebtedness,” etc.
On the application of the plaintiff, a receiver was appointed in the case January 19,1893, to take charge, etc., pending the litigation.
The court upon a trial of the cause found in favor of the plaintiff and also in favor of the Earl Fruit Company, and entered a decree for the sale of the real property to satisfy the plaintiff’s mortgage; found the lien of plaintiff’s mortgage on the fruit crop of 1893, prior to the chattel mortgage, and decreed the proceeds thereof to be applied: 1. To satisfy any deficiency due plaintiff after a sale of the real property; and 2. To the satisfaction of the sum found due said Earl Fruit Company, and secured by said chattel mortgage.
The Earl Fruit Company appeals from so much of the decree as requires the receiver to pay out of the proceeds of the crop of 1893 the deficiency, if any, due to plaintiff, and the residue to said company, etc.
The appeal is presented on the judgment-roll.
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