De Arnaz v. Jaynes

HAYNES, C. This is an appeal from a judgment foreclosing a mortgage. Appellants Jaynes, Moffatt and Conkling, and J. M. Taylor, Andrew Stephens and others, were made defendants. The mortgage was executed February 3, 1887, by appellant Moffatt and one H. Clay Graham, since deceased, to secure their two joint and several promissory notes for the aggregate sum of $20,540, with interest at eight per cent per annum, payable semi-annually, and if not paid, to bear interest at the same rate. Andrew Stephens was a lessee of the mortgaged property, and answered, setting up his interest. J. M. Taylor answered, alleging that he is the owner of an undivided two-thirds of the mortgaged premises, subject to the lien of the mortgage, and consenting that plaintiff be granted the relief prayed for in his complaint, including the appointment of a receiver. Defendants Jaynes, Moffatt and [227]Conkling (the appellants here) answered, admitting that no payments had been made upon the mortgage, and alleging that from December 1, 1887, to November 17, 1891, defendant Taylor owned an undivided two-thirds of the mortgaged property, and they the remaining one-third; that during the time above mentioned the plaintiff, as mortgagee, was in possession of the mortgaged premises, and received the rents and profits of the same, of the value of $5,000, which should have been applied upon the mortgage; and prayed for an accounting. Plaintiff demurred to this answer. The demurrer was sustained, and, defendants declining to amend, judgment went against them. Of all the defendants, Moffatt was the only one personally liable for the mortgage debt; and plaintiff, in his complaint and in the judgment, waived a deficiency judgment, except as to the funds in the hands of the receiver. The notice of appeal was served only upon the plaintiff, and he, as respondent here, now insists that the appeal should be dismissed because of appellants’ failure to serve the notice of appeal upon defendants Taylor and Stephens, both of whom, he contends, would be affected by a reversal of the judgment.

There was no personal judgment against any of the defendants, for a deficiency or otherwise, but there was a judgment against the whole of the property, and to which Taylor is a necessary party. If the judgment should be reversed, Taylor would necessarily be a party to further proceedings, else his interest in the mortgaged premises would not be foreclosed. Respondent suggests that as the mortgage debt bears ipteest at eight per cent, compounded semi-annually, while the judgment bears but seven per cent, Taylor would necessarily bé injuriously affected, since the amount for which his property would be liable would be increased. On the other hand, appellants contend that plaintiff should be required to account for the rents and profits, as alleged in their answer, and that such accounting would diminish the amount for which Taylor’s interest would be liable, and that, therefore, he would be benefited. But this must depend upon their success in compelling an accounting, and the amount for which the plaintiff may be required to account. Taylor, having consented to the judgment, could not appeal, and is therefore conclusively presumed to be satisfied therewith. What ¡bis reasons were for so consenting we can only conjecture.