Ogden v. Davis

Statutory Bond—Sureties Favored—No Liability Beyond Express Terms.—Sureties upon a statutory bond are favored in law, and are entitled to stand upon the express terms of their agreement, and are never implicated beyond those terms, and it is not permitted as against them to suffer anything to be done which will change or vary the known and definite risk which they assume in entering upon their contract.

Id.—Bond upon Appeal to Stay Waste—Misdescription in Mortgage— Liability op Sureties—Failure oe Proof—Nonsuit.—In an action upon a bond given upon appeal from a decree of foreclosure to stay waste upon the mortgaged premises, the description of which followed an erroneous description contained in the mortgage and complaint, which was never reformed, but was followed throughout in the decree and foreclosure sale, where no waste is shown to have been committed upon the lands described in the bond, although it appears that, in fact, there was no such lot of land as that therein described, the sureties are entitled to a nonsuit for failure of proof as to the cause of action against them for waste.

Id.—Waste upon Land not Described—Parol Evidence of Error Inadmissible.—Where the bond against waste, following the description of the mortgage and complaint, described the land as “lot 264 of the lands of the Riverside Land and Irrigation Company,” there being, in fact, no such lot, parol evidence to prove that another parcel of land, known as “lot 264 of the lands of the Southern California Association,” had suffered waste at the hands of the defendants who gave the bond, and that the latter description of the land was correct, and the former erroneous, is not admissible, and is properly excluded by the court.

Id.—Bond for Deficiency—Order Fixing Penal Sum—Recital Conclusive upon Sureties—Pleading—Evidence.—A recital in a bond for deficiency, given upon appeal from a decree foreclosing a mortgage, specifying a penal sum, and stating that the sum was the amount fixed by the judge of the court, is conclusive and binding upon the sureties to the bond, and may he taken as true against them in an action to recover the amount of the deficiency, and the existence of such order need not be averred in the complaint, nor shown by evidence at the trial.

Id.—Bond por Waste and Deficiency — Measure of Liability of Sureties.—Where an undertaking strictly complies with the provisions of section 945 of the Code of Civil Procedure, as interpreted by tins court, and the sureties have bound themselves in a penal sum, fixed by the superior judge, to make good not only any damage which may arise from waste, but also any deficiency judgment which may remain after sale of the mortgaged premises, if the penal sum fixed is consumed by a judgment against the sureties for waste, no recovery can he had against them for deficiency; but if no damage for waste is recovered, the full amount of the penal sum is available to make good any deficiency not exceeding that sum.