Raun v. Reynolds

Citations

• 11 Cal. 14

Syllabus

<p>The act to regulate interest on money is in derogation of the common law, and must be strictly construed.</p> <p>Apply this rule of construction to the language of the second section of the act, and it will confine its provisions to contracts, fixing the rate of interest.</p> <p>According to the common acceptation, the expression, “ rate of interest,” has reference to the percentage or amount of interest, and not to the manner of computing. The provision of the statute which authorizes judgments to bear the same interest as the contracts on which they are recovered, was intended to be confined to contracts fixing the rate of interest.</p> <p>In a foreclosure suit, where judgment is taken by default, the decree can give no relief beyond that which is demanded in the bill.</p> <p>Where proceedings in a foreclosure suit were delayed by agreement, in consideration of the execution of a second mortgage on other property in which third parties joined as additional security, and subsequently plaintiff filed a supplemental bill, setting up the second mortgage, and asking a sale of the premises described in both mortgages, judgment was taken by default for the debt, and the court decreed a foreclosure of the several mortgages and a sale of the property conveyed, and directed that the property described in tbe mortgage executed by Reynolds should be first offered for sale ; but that no bid should be received for a less sum than the full amount of judgment and costs. If this sum was not bid, then the whole property included in the two mortgages—from Reynolds and from Kirk and Reynolds —was to be sold together : Held, that the decree is erroneous.</p> <p>The well established rules of equity proceedings require, in such cases, not only that the property should be sold in parcels, but that the property included in the first mortgage should be exhausted, before recourse is had to the second.</p> <p>A party entitled to redeem has a right to have ascertained the price at which hi