Boob v. Hall

McFarland, J. This is an action to foreclose a mortgage in which a decree of foreclosure was rendered for plaintiffs, from which defendants have appealed. The sheriff sold the property, and is about to give a deed to the purchaser; and this case is now before us on a motion of defendants to set aside the sale, and restrain the sheriff from executing a deed, upon the ground that defendants have given an undertaking on appeal which stays execution. The undertaking is in the penal sum of one thousand dollars, and provides that, in case the judgment is affirmed, the appellants will not suffer waste, and will pay the value of the use, etc., of the premises, and also any deficiency that may arise upon the sale; and the undertaking recites that the said one thousand dollars is the amount fixed by the judge of the court to include the said deficiency.

There is certainly no provision of the code applicable to the matter of a bond for a deficiency judgment upon appeal from a decree foreclosing a mortgage other than section 945 of the Code of Civil Procedure; section 942, which requires a bond in double the amount of the judgment, is clearly not applicable. It refers solely to a judgment in personam, for a certain sum of money, and provides that upon affirmance on appeal the sureties must pay the whole amount, or have personal judgment entered against them therefor. It is obvious that such a provision could not apply to sureties on a bond for an unascertained deficiency. Nor is there any other section of the code which throws any light on the question here involved.

Section 945 is as follows: “ If the judgment or order [415]appealed from direct the sale or delivery of possession of real property, the execution of the same cannot be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency.”