Campbell v. Neighbors

GRIFFIN, P. J. Plaintiffs and respondents Clinton C. Campbell and wife filed this action on December 5, 1957, for declaratory relief against defendants Stanley N. Neighbors and wife, Robert W. Strouse and wife, Herbert C. Armstrong and wife, Margaret A. Hudson, Paul D. Dail and wife, and C. B. Martin, alleging generally that plaintiffs were the owners of certain real property in Yuma, Arizona; that on February 1, 1955, plaintiffs conveyed it to defendant Neighbors and wife, and as part of the consideration defendants executed and delivered to plaintiffs, as security, a second mortgage on the premises in the sum of $42,000, and as further security plaintiffs received a chattel mortgage covering all furniture and equipment on said premises; that thereafter, on July 10, 1955, defendants Neighbors conveyed said property to defendants Strouse and wife and as part of the consideration they assumed and agreed to pay said second mortgage above mentioned ; that thereafter, on November 3, 1955, defendants Strouse and wife conveyed said property to defendants and appellants Armstrong and wife and as a part of the consideration they assumed and agreed to pay said second mortgage; that on February 20, 1957, defendants and appellants Armstrong and wife conveyed said property to defendant Hudson, and as a part of the consideration she assumed and agreed to pay said second mortgage; that on February 20, 1957, defendant Hudson conveyed the property to defendant Martin and as a part of the consideration he assumed and agreed to pay said second mortgage; that on April 5, 1955, plaintiffs purchased certain described real property in San Diego from defendants Dail and wife; that as part of the consideration plaintiffs assigned to them the second mortgage and chattel mortgage above described; that on May 27, 1957, the holders of the first mortgage on the Yuma property brought an action in Arizona to foreclose it, alleging a default and balance due of $31,240; that said property was to be sold on December 18, 1957, and they believed the property would not sell for a sufficient sum to pay for the first and second mortgages in full, thereby leaving a deficiency due on the second mortgage; that under the law of Arizona a deficiency judgment will lie after the [328]sale of real property under a purchase money mortgage; that the laws of' California provide otherwise; that due to the apparent conflict a question of the construction of the applicable law as to the enforcement of the deficiency of said second mortgage, now in the hands of defendant Bail and wife, arises; that the other defendants are interested parties to said controversy in that they assumed payment of said second mortgage; that in the event the Superior Court of San Diego County determines that there existed the legal right to institute an action for said deficiency, there will be a personal liability by reason of said assumption of payment by defendants Martin, Hudson, Armstrong, Strouse and Neighbors, in. said order of priority, and would require a multiplicity of suits if said questions are not determined; that defendants Bail and wife intend to institute an action to recover from the plaintiffs the full amount due under the second mortgage prior to the foreclosure sale.