Commercial Bank of Madera v. Redfield

California Supreme Court Nov 22, 1898 No. Sac. No. 461Published

Before: Chipman

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Holding. The court held that the judgment was supported by the findings of ultimate fact, which established that the defendants' promises to pay the mortgage debt were made without consideration and were therefore unenforceable.

Issues

Whether the findings of fact support the judgment regarding the liability of the defendants for the mortgage debt.
Whether the trial court's findings of ultimate fact regarding the lack of consideration for the defendants' promises are controlling over conflicting probative facts.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule has been long settled that when the ultimate fact is found, no finding of probative facts, which may tend to establish that the ultimate fact was found against the evidence, can overcome the finding of the ultimate fact.”

“they took the land, as the deeds declare, “subject to the mortgage,” and this phrase carries with it no assumption of the debt.”

Synopsis

Appeal—Review of Evidence—Bill of Exceptions—Specifications.—• A bill of exceptions containing no specifications of the insufficiency of the evidence to justify the decision, cannot be considered upon appeal for the purpose of reviewing the evidence embodied therein.

Id .—Admissibility of Evidence—Harmless Rulings.—Rulings against the admissibility of evidence are harmless, where the same facts are subsequently proved and included in the findings.

Id.—Review of Findings—Probative and Ultimate Facts.—In reviewing the sufficiency of the findings to support the judgment, regard will be had to the ultimate facts found, and not to mere probative facts, which are not shown by the findings to be the only facts proved, from which alone the court finds the ultimate facts; and in the absence of such showing, the mere circumstance that some of the probative facts are inconsistent with the ultimate facts, will not prevent the ultimate facts found from controlling the probative facts.

Foreclosure of Mortgage—Assumption of Mortgage Debt by Grantees —Deficiency Judgment.—Deeds of mortgaged premises merely specifying that the lands conveyed are “subject to the mortgage,” do not create any assumption of the mortgage debt by the grantees, or subject them to a deficiency judgment upon foreclosure of the mortgage.

Id.—Subsequent Verbal Promise by Grantee—Want of Consideration —Forbearance to Sue.—A subsequent verbal promise by the grantee to pay the mortgage debt, made without consideration, is not binding; and a subsequent voluntary forbearance of the plaintiff to sue, not based upon any promise of the grantee to pay the debt, nor made a condition thereof, cannot support the promise.

CHIPMAN, C. Foreclosure of mortgage on real property. It appears from the findings that the promissory note and mortgage, the subject of the action, were made by defendants O. T. and Phebe Redfield to defendant Roberts, and by Roberts was assigned to plaintiff before the maturity of the note, with written guaranty of payment at maturity indorsed thereon. Included in the mortgage with other lots was lot 14, block 60, town of Madera. ¡November 11, 1893, the Redfields (mortgagors) sold this lot to defendant Lazar Popovich, who promised the Red-fields that he would pay the note and mortgage. June 28, 1894, Lazar Popovich conveyed said lot, consideration love and affection, to his wife, defendant Viola Popovich, the deed reading: “Subject to the mortgages on the same to the amount of three thousand and eighty-six dollars, and interest on the same.” The finding is, that “she did not at that time, or at any other time, promise said plaintiff Roberts, Lazar Popovich, or the Redfields that she would pay or discharge said note, or any part thereof.” December 8, 1894, said Viola and Lazar Popovich conveyed a half interest in the lot to defendant Milan Vucovich,. “subject to said mortgage.” On or about May 24, 1895, said Milan “did verbally (and not otherwise) promise said plaintiff that he, said Milan Vucovich, would pay to plaintiff all sums due and to become due on said promissory note and mortgage; but said promise was without any consideration.” On May 22, 1895, said Viola and Lazar conveyed to defendant Mitchell G. Vucovich the remaining half interest in said lot, subject to said mortgage, who entered into possession thereof. On May 24, 1895, Mitchell made a promise similar to that of said Milan Vucovich. Milan and Mitchell Vucovich composed the firm of Vucovich Brothers, and the same persons and defendant Marco Vucovich composed the firm of Vucovich Brothers & Co., and the finding is, that neither the partnership of Vucovich Brothers & Co. nor any member thereof promised to pay said note and mortgage.

As conclusions of law, the court found that plaintiff was en[407]titled to judgment for the amount due against the Redfields and Lazar Popovich, and also judgment for any deficiency after sale of the premises; that said defendants Milan, Marco, and Mitchell Vucovich, Vucovich Brothers, Vucovich Brothers & Co., and Viola Popovich are not, nor is either of them, indebted to plaintiff; nor is plaintiff entitled to deficiency judgment against them or either of them. Decree was accordingly entered, from which plaintiff appeals, especially from that part carrying out the conclusions of law as to the defendants last above-mentioned. The appeal is presented by hill of exceptions.

Commercial Bank of Madera v. Redfield

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