Redlands Hotel Ass'n v. Richards

Citations

• 125 Cal. 569
• 58 P. 152
• 1899 Cal. LEXIS 903

Syllabus

<p>Chattel Mortgages—Foreclosure of Second Mortgage—Value of Property—Power of Commissioner.—A commissioner appointed to make sale of chattels under a decree of foreclosure of a second chattel mortgage thereupon, is clothed with executive powers only, and cannot judicially determine that the property is not of sufficient value to meet the prior mortgage, nor certify a deficiency without having made sale of the property as directed.</p> <p>Id.—Return Without Sale—Deficiency Judgment Vacated—Execution Quashed.—The return hy the commissioner without sale cannot warrant the docketing of a deficiency judgment; and a judgment so docketed, upon which execution is issued, is properly vacated hy the court, and the execution quashed.</p> <p>Id.—Power of Court—Case Considered.—It seeing that under the equitable construction given to the statute in Toby v. Oregon etc. Co., 98 Cal. 490, the court may have the power, upon proper proof that the mortgage was valueless, on account of the insufficiency of the property to pay and discharge the prior mortgage, to find that fact, and direct a deficiency or personal judgment against the defendants without selling the mortgaged property.</p>