Los Angeles herald., 1891-07-03
An Important Decision on
Mortgage Foreclosure.
Assumption of Debt by Buyers
Of Mortgaged Property.
The Decision as Handed Down From
the Supreme Court.
Some Valuable Law Points Covered.
News of Cases Acted Upon
st Yesterday Court
Notes.

the clerk of the supreme court reversing
the judgment of the lower court in the
case of G. G. Jones, respondent, VS.. J.
Eddy ct al, appellants. Following is
the decision in full:
This action was to foreclose mort
gage upon certain real property. The
case comes here on appeal from the
judgment rendered as prayed for, for the
sale of the mortgaged premises, and in
case of deficiency arising from said
sale, for the deficiency balance as
against the defendants. Mrs. Eddy, one
of the defendants, does not appeal.
The mortgage was made to secure GER
tain promissory notes executed and
delivered in favor of George and Olive
Scoville, who have assigned the same to
plaintiff, Jones.
Verch and Sanborn, who are the ap-
pellants here, were the purchasers from
Mrs. Eddy of her interest in the mort
gagged premises.
Among other things the court, in its
fourth finding of fact, found from the
pleadings that when Verch and Sanborn
bought her interest they assumed and
agreed to pay said notes and mortgage,
according to the terms thereof, which
assumption and agreement was to the
benefit OF George Scoville and Olive Sco-
Vile, and on said 9th day of October,
1887, said interest OF Jemima Eddy in
said premises was by her deed, bearing
date on that day and since recorded in
book 32l of deeds, page 267, of said Los
Angeles county records, conveyed by
said Jemima Eddys together with P. G.
Eddy, her husband, to defendants R.
Verch and A. j. Sanborn, jointly, who
now are in possession Of said premises,
except lot IL hereinafter mentioned,
since released from the operation of said
mortgage"
The appellants claim that they ought
not to be held liable for deficiency
over and above what the mortgaged
premises may bring at foreclosure sale.
There would be no difficulty in affirm
ing the judgment here if finding four
was justified by the pleadings. (Pellier
vs. Gillespie, 81 Cal. 5S3.)
The appellants say that such finding
CTR. fol. 87), most of which we have
heretofore quoted herein, is not sus-
tanned by the actual condition of the
pleadings. They claim that the denial
in the amended answer and cross-com-
plant at paragraph 2, folio 73 of the
transcript is sufficient as against that OF
the complaint in paragraph 3, folios IL
and IL. And that such being the case,
finding four Is not justified.
If the averments in the answer were
in the conjunctive, evasive, and raised
no issue. they would come under the
rule laid down in Doll vs. Good, 3S CAL,
290; and the trial court would have de-
cided correctly in finding the allegation
of the complaint to be true.
But that tribunal has come to this
cor clusion by holding that where it is
said in the complaint the defendants
mortgage debt, that they un-
and distinct things essential to make
them responsible to pay the mortgage
debt, if the property resting under the
mortgage lien was insufficient for that
purpose.
We cannot see that there is any differ
ence whatever in this instance in saying
that they undertook and agreed" to
pay the debt, from saying that they
"assumed and agreed" to pay it. There
is only one proposition contained in the
words, assumed and agreed" as here
employed. The assumption to pay the
debt is, as used here, the same thing as
agreeing or undertaking to pay it, and
the use of both words, "assume and
agree" is, as employed, no more the
statement of two distinct propositions
than if it had been stated that they
"agreed and agreed" to pay the debt.
For these reasons we think the find
ing is wrong, and that the judgment is
erroneous so far as the defendants
liability for deficiency is concerned,
and we advise that it be reversed.
FooTE, G.
COURT NOTES.
In department five yesterday the case
of G. A. Sawtelle VS.. the Elsinore Land
and Water company ct al, an action to
fix the title TO certain stock in the de-
fendant company, was concluded as to
the taking of testimony and submitted
on briefs.
Judge Wade yesterday ordered judg-
ment entered by consent in the case of
Hughes vs. Fulton, an action to recover
on promissory note for $1,000.
In the district court, the bonds offered
by John Urvere, who was committed for
trial by Commissioner Van Dyke for
selling liquor to Indians, were cancelled,
the grand jury having failed to bring in
an indictment against him.
Judge Ross yesterday signed the COM
missions for the taking of testimony
asked for in the case of the United
States vs.. Ricardo Trumbull, Geo. A.
Butt and Captain James O'Farrell.
Judge Mckinley yesterday granted
the privileges of citizenship to John
King, a native of England.
In the appeal case of Paye vs.. Hansel-
man, Judge Mckinley yesterday ordered
the judgment of the lower court reversed
and ordered the case put upon the cal
endar for new trial.
The case of ]. P. Jones ct al. vs. j. N.
Henry, an action to quiet title to two
lots on Ocean avenue at Santa Monica,
was on trial yesterday before Judge Nc
Kinley. A continuance was taken till
today to allow of the taking of the de-
position of the defendant, who is ill.
NEW CASES.
The Pasadena Improvement company
sues Mr.. w. P. Spratt to compel the full
fllment of contract to foreclose real
estate in Pasadena upon which $942. sc
is still due.
Miss Ida Dunlap petitions for the pro-
bate of the will of Celia D. Collins, dis
posing of real and personal property