Goodlett v. St. Elmo Investment Co.

Citations

• 94 Cal. 297
• 29 P. 505
• 1892 Cal. LEXIS 677

Syllabus

<p>Foreclosure of Mortgage — Debt of Association — Deficiency Judgment— Construction of Code.—It seems that if an association of persons transacting business under a common name contracts a debt which is secured by a mortgage of one or more of the associates or of a third person, the mortgagee in his action to foreclose may, if he chooses to do so, proceed against the association by its common name under section 388 of the Code of Civil Procedure, for the purpose of obtaining a deficiency judgment, binding only the joint property of the associates.</p> <p>Id. — Mortgage by Trustee of Association — Action against Association and Members Individually — Right to Deficiency Judgment against Members. — In an action to foreclose a mortgage alleged to have been executed by the trustee of ah association acting in behalf of the association, where the association was sued and also the individual members thereof, all of whom appeared and answered to the merits, and the complaint, though ambiguous, is not clearly indicative of an intention to proceed under section 388 of the Code of Civil Procedure, or to forego the right of plaintiff to a deficiency judgment against the individual members, and the answers of the defendants admitted the genuineness and due execution of the articles of association as set forth in the complaint, and did not controvert the partnership relation of the members and their joint liability to third persons upon obligations of the company incurred while they were such members, and the trial court impliedly found that the trustee executing the mortgage had authority to do so for the company, and that it hound the company and its members, the mortgagee is entitled to a deficiency judgment against the defendants who were members of the association at the date of the execution of the mortgage, and a deficiency judgment against the association alone will be reversed upon appeal of the mortgagee.</p> <p>Id,—Sale of Premises — Waiver of Right of Appeal as to De