Gutzeit v. Pennie

Citations

• 97 Cal. 484
• 32 P. 584
• 1893 Cal. LEXIS 575

Syllabus

<p>Foreclosure of Mortgage — Appeal—.Stay of Execution—Bond fob Deficiency. — A bond to stay execution pending an appeal from a judgment of foreclosure of a mortgage must provide for the paymént of any deficiency arising upon the sale; and a bond given by a mortgagor upon such appeal, merely for the costs of appeal, and against waste pending the appeal, is insufficient to stay the execution of the judgment.</p> <p>Id. —Fixing of Bond to Stay Waste. — The provision of section 945 of the Code of Civil Procedure requiring the trial judge, in an action of foreclosure of a mortgage, to fix the amount of the undertaking against waste required to be given when the judgment directs the sale or delivery of the mortgaged property, is distinct from the clause requiring that the undertaking must also provide for the payment of a deficiency, and the authority of the judge to fix the penalty of the undertaking is limited to the object named in the clause in which it is granted, and cannot dispense with the undertaking for a deficiency.</p> <p>Id.—Reference in Bond to Provisions for Stay.—An undertaking upon appeal by a mortgagor from a judgment directing the foreclosure of the mortgage and the entry of a deficiency judgment, which, after reciting the order of the court fixing the amount of the undertaking required against waste, provides that the surety, in consideration thereof, binds himself in the sum named that the appellant will not commit waste, renders the surety liable only upon proof that waste has been committed; and a subsequent clause in the undertaking, that it is given in compliance with the provisions oí section 945 of the Code of Civil Procedure, which requires the undertaking to provide for the payment of the deficiency, does not extend its effect beyond the condition for which it was executed.</p> <p>Id.—Rights of Junior Mortgagee — Enforcement of Judgment — Insufficient Undertaking — Waiver. —When, in an action of foreclosure brought by the holder of a prior mo