Merced Security Savings Bank v. Casaccia

Citations

• 103 Cal. 641
• 37 P. 648
• 1894 Cal. LEXIS 838

Syllabus

<p>Mortgage—Foreclosure—Construction of Code.—Section 726 of the Code of Civil Procedure, which provides that there can he but one action, for the recovery of any debt secured by mortgage upon real estate, is a limitation upon the rights which usually pertain to property, and the restriction will not be carried beyond the obvious import of the language used.</p> <p>Id.—Object of Code Provision—Exhaustion of Security—Personal Action.—The obvious purpose of section 726 of the Code of Civil Procedure is to compel one who has taken a special lien to secure his debt to exhaust his security before having recourse to the general assets of the debtor; and when he has done this, or when without his fault the security has been lost, the policy of the law does not prohibit a personal action.</p> <p>Id.—Statutory Construction.—A construction should not be given to a statute, if it can be avoided, which will lead to absurd results, or to a ' conclusion plainly not contemplated by the legislature.</p> <p>Id.—Collateral Mortgages to Secure Indebtedness—Foreclosure.— Section 726 of the Code of Civil Procedure was not intended to prohibit the ordinary transaction of putting up mortgages as collaterals to secure an indebtedness, nor to limit such collaterals to mortgages which can be foreclosed in the same action.</p> <p>Id.—Separate Actions Upon Collateral Mortgages.—Where a mortgagee has assumed a debt of the mortgagor, for which he has given his personal note to a hank, and has assigned to the hank the mortgage as collateral security for the payment of his note, and at the same time has executed another note to the bank, secured by a mortgage upon land of his own, which was also intended as collateral security for his other note to the bank, the hank, after foreclosing the first mortgage and crediting the proceeds upon the first note, may maintain a separate action for foreclosure of the second mortgage given to secure the principal debt.</p> <p>Id.—Nature of Action Upon Collatera