Daily Los Angeles herald., 1880-10-14
Supreme Court Opinion.
DEPARTMENT NO. 1.
Filed Oct. 18th, 1880.
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The complaint is in substance a!
follows:
'The above-named plaintiff, com
planning of the above.named de-
PENDANTS, alleges:
That on or about the first day o.
September, 1877, the said defend
ants entered into the following
contract, in writing, with A. g.
McSwaiD, tO-wit:
| For valae received, we hereby
agree with A. 9. McSwain, that
when the mortgage of Mrs. Mar.
garet Barfield against him IL fore.
closed, if there should he any fore.
| closure, that we will see that no
personal judgment is taken against
him. That is, we will see that the
land, ii sold under such decree OF
foreclosure, sells for sufficient to
pay the amount due her from said
mortgagor, under the terms of said
mortgage.
'Merced, Cal, Sept. l, 1877.
G.. FL. MARKS,
JNO. +. MCSWAIN.'
That the consideration expressed
In said contract as valuable, was
the conveyance by deed from the
said A. 9. McSwain, to the said G.
II. Marks and John f. McSwain,
the defendants herein, the follow
ing described real estate, situated
in the county of MERGED, State OF
California, t0-wlt:"
Here follows description of the
lands.
"That the mortgage referred to
In said contract as the mortgage
OF Mrs. Margaret Barfield against
him. was o mortgage which the
plaintiff herein, at that time, to-
wit, September l. 1877, held against
the said A. G. McSwain, in words
aud figures following, to.wit:"
And here ls recited the mortgage
at length.
"Tbat on the 18th day of Noven1-
Der, 1877, the said Margaret Bar
field commenced an action in this
Court to foreclose said mortgage,
and that, afterwards, to-wit: on
the goth day of March, 1878, the
said Mararget Barfeld did obtain
from this Court decree of fore
closure and personal Judgment
against said A. 9. McSwain in said
action, which said decree of fore
closure and sale is in words and
figures following, to-wit:" And
then follows the decree at leng til,
with statement of certain subse.
quent proceedings, and then the
avermsnt:
"That-afterwards, to-wit, on the
Sd day of May, 1873, a personal
judgment against the said A. G.
McSwain in said action, was by
the Clerk of this Court entered
upon the Judgment Docket Of this
Court for the sum of six hundred
and eighty.six and 5000 dollars,
gold coin Of the U. S., with inter-
est thereon at the rate of 10 per
cent. per annum. That upon the
entering of said personal judgment
In said action against the said A.
G. Mes vain, as aforesaid, the de-
PENDANTS herein became liable,
upon the contract above set forth,
In the sum for which said personal
Judgment was SO entered, to.wit.
1855 50 100 with interest as afore-
said"
The plaintiff further alleges an
endorse ment by A. G. Mc5wain, Of
the contract first recited, and that
there Is now owing upon the said
contract $685. So 100 with interest at
ten per Cent. per annum, which
plaintiff has demanded. The
prayer is for judgment for the
amount named and interest and
costs.
Defendant demurred on the
grounds that the complaint did not
state facts sufficient to constitute
a cause of action. and that it was
ambiguous, etc.
The complaint does not allege
that plaintiff or her assignor has
paid the personal judgment rem
dered against the former, or any
part thereof.
The foregoing statements relieves
the case of many of the embarrass-
ing questions deliberately consid-
cred by Mr.. Sedgwick in his treat
ise on the Measure of Damages. &
ed, vol. g., chap. IL; see also, in
addition to the cases there cited,
Jones v. Childs, 8 New, 12l.) The
contract Of defendants amounted at
least to a covenant to discharge or
acqult the mortgagor from any per.
sonal judgment on the foreclosure
of plaintiffs mortgage. The
breach was we'll assigned by the
overment that personal judgment
had In fact been entered against
the mortgager, and non dammit.
catus, would have been good plea
under the former system of reading.
(Thomas v. Allen, II Johns. 1862
The contract of defendants was
that no personal Judgment should
be taken against the assiguor of
plaintiff, and further, that the
land mortgaged, If sold under de-
cree foreclOsing the Barfield mort
gage, should sell for sufficient to
pay the amount due upon that
mortgage. These promises were
DaSeu upon Valuable cO05iQera.
ton, to wit: transfer of the equity
OF redemption. By such transfer
the assignor of plaintiff paid de-
PENDANTS to prevent any personal
Judgment against him. He after.
wards found that he was liable for,
and If able, must pay the Judgment
which defendants had agreed to
pay for him. We speak advisedly
in saying defendants had agreed to
pay it for him, in case such judg-
ment should be entered. 1t was
their bounden duty to see to it that
the property brought u sum suffi-
cient to pay off the mortgage, by
bidding, If necessary, at the sale;
but, it they neglected te do this, II
would be substituting apparition
for substance, to say that it was
not also THAR duty to pay the per-
sonal judgment for the balance. II
would certainly be defense to this
suit that defendants had satisfied
the judgment. Their contract was