Russell v. Hank

• Decision Date: 31 August 1893
• Citation: 9 Utah 309,34 P. 245
• Court: Utah Supreme Court
• Parties: JAMES B. RUSSELL, APPELLANT, v. CALEB R. HANK AND ANOTHER, RESPONDENTS

34 P. 245

9 Utah 309

JAMES B. RUSSELL, APPELLANT, v. CALEB R. HANK AND ANOTHER, RESPONDENTS

Supreme Court of Utah

August 31, 1893

APPEAL from an order of the district court of the fourth district setting aside a portion of a decree of foreclosure, Hon James A. Miner, judge. The opinion states the facts.

Reversed and remanded.

Mr. W L. Maginnis, for the appellant.

The former two actions, one at law upon the note, the other in equity upon the mortgage, are by our code consolidated into one action, and a mortgagee may bring suit and have judgment docketed for the full amount due. Then he can proceed to sell the property and apply the proceeds thereof upon the judgment, and no proceedings are necessary to ascertain the deficiency. Rowland v. Leiby, 14 Cal. 157; Brereton v. Miller, 7 Utah 426. It appears in this case that Nation was a purchaser under a warranty deed, and it is questionable whether or not his interest could be protected in any other way. Also, the deficiency judgment would not become a lien upon Hank's property, until a sale was made and the judgment docketed, if the whole amount due was not entered as a judgment against the defendant liable. The mortgagee is thus secured from the risk of any intermediate conveyance by his mortgagor of any other of his property. The mortgagor has no right to complain because any amount realized from the sale of the mortgaged premises is immediately credited upon the judgment. Culver v Rogers, 28 Cal. 520; Hibberd v. Smith, 50-Cal. 511; Chapin v. Broder, 16 Cal. 403.

Mr. J. H. MacMillan, for the respondent.

If the appellant chose to rely wholly upon the mortgage without asking for any judgment for a deficiency he waives this right. Bartlett v. Cottle, 63 Cal. 366; Ould v. Stoddard, 54 Cal. 613; Hall v. Arnott, 80 Cal. 353; Laverson v. Soap Co., Id. 248; Porter v. Muller, 65 Cal. 513; Hayman v. Kelly, 1 Nev. 185.

ZANE, C. J. BARTCH, J., and SMITH, J., concurred.

OPINION

ZANE, C. J.

In the complaint filed in this cause the plaintiff described a promissory note payable to him made by the defendant, Caleb R. Hank, for $ 4,592,25, alleged non-payment, and prayed judgment for the amount due; and, for a second cause of action he set out the same note and a mortgage executed by Caleb R. Hank and America L. Hank, on real estate to secure it, and alleged a breach, and the usual prayer of foreclosure, "and for other and further relief," without expressly asking for a judgment for any deficiency in case the mortgaged property should not bring enough to satisfy the decree. It appears from the record that no appearance was entered by any of the defendants except Minnie P. Woods, who entered a disclaimer; that a default was duly taken; and that on April 4, 1892, the court found in the decree that all the allegations of the complaint were true; and that there was due on the note described in the complaint $ 5,057.72, and ordered a sale of the property to satisfy it. The decree also contained the following: "And it is further adjudged and decreed that if the moneys arising from the sale shall be insufficient to pay the amount so found due to the plaintiff as above stated, with the interest, costs, and expense of sale, the sheriff shall specify the amount of such deficiency and balance due the plaintiff in his return of said sale, and, on the coming in of said return, a judgment of this court shall be docketed for such balance against the defendant Caleb R. Hank, and that said defendant, who is personally liable for the payment of the debt secured by said mortgage, pay to the said plaintiff the amount of such deficiency and judgment, with interest thereon at the rate of 8 per cent. per annum from the date of said return and judgment; and that the plaintiff have execution therefor."

It further appears from the record that on the same day the court ordered the sheriff of Weber county to sell the property described in the mortgage and decree, and that he sold the same in pursuance thereof on April 28, 1892, for $ 2,702.32 less than the amount mentioned in the decree and interest and costs; that the same was shown by the sheriff's return made on the same day; and that on the same day an execution was issued commanding the sheriff to make such deficiency out of any property of the defendant subject to execution; and that this execution was levied on such property. This execution recited that a deficiency judgment had been entered on the same day of $ 2,702.32, with accruing interest and costs, but no such judgment or any judgment authorizing the execution appears in the record, and we must presume there was none entered, or it would have appeared in the record. It also appears that the portion of the decree above quoted, and the execution purporting to be issued on the deficiency judgment, and its levy, were set aside by an order of the court made on August 15, 1892, on motion of defendant, on the ground that there was no prayer in the complaint for a deficiency judgment. It also appears that this order of the 15th of August was also set aside by the court on the 5th of October following on motion of the plaintiff. It further appears from the record that this order of October 5, 1892, was set aside by ...