Hamburger v. Ellingson

STURTEVANT, J. From a judgment in favor of plaintiffs foreclosing a mortgage they have appealed from the last paragraph of the judgment and have brought up the judgment-roll only.

On the sixteenth day of March, 1926, the defendants G. E. Ellingson, Herbert W. Schmidt, Mary L. Schmidt, his wife, I. Pelsner and May Pelsner, his wife, executed their note to Martin T. Sayre and Josie D. Sayre. To secure the payment of that note they also executed a mortgage on real estate in Los Angeles County. On the eighteenth day of February, 1928, the note and mortgage were assigned to the plaintiffs. On the eleventh day of November, 1927, I. Pelsner and May Pelsner, his wife, and G. E. Ellingson, being the record owners of the real estate, conveyed it to Equitable Realty Company, a corporation. The deed recited, among other things: “Subject to a mortgage of record securing a note for :$32,000 (the note in suit) which said mortgage the grantee herein by the acceptance of this deed assumes and-agrees to pay.” The Equitable Realty Company did accept the deed. On September 8, 1931, there had been paid on the principal $3,750. The interest had been paid down to March 16, 1931, otherwise the payments of principal and interest were in default and the plaintiffs commenced this action. On the ninth day of May, 1931, the plaintiffs executed a partial release. In their complaint the plaintiffs named the mortgagors as defendants and they also named the grantee of the mortgagors. [313]In the prayer of their complaint, among other things, they asked, “ . . . that plaintiffs have judgment and execution against defendants G. E. Ellingson, Herbert "W. Schmidt, Mary. L. Schmidt, I. Pelsner, Mary Pelsner, and Equitable Realty Company, a corporation, and each of them for any deficiency which may remain after applying the proceeds of the sale of such mortgaged property ...” In its findings the trial court found all of the allegations of the complaint of the plaintiffs to be true.- The last paragraph of the judgment which is the subject of the attack on this appeal is as follows:

“It is further ordered, adjudged and decreed that the deficiency judgment, if any, entered herein, upon and after the sale of said real property, shall first be satisfied from the property of the defendant Equitable Realty Co., to the extent that such property shall be sufficient for such purpose and that no execution for said deficiency judgment or any part thereof shall issue against the property of the defendants G. E. Ellingson, I. Pelsner and/or May Pelsner unless the property of the said defendant Equitable Realty Co. shall be insufficient to satisfy said deficiency judgment, in which event the plaintiffs may have execution against the property of said defendants G. E. Ellingson, I. Pelsner and May Pelsner, or either of them, for any part of said judgment remaining unsatisfied.” The plaintiffs freely concede, and in their brief they state: