Toby v. Oregon Pacific Railroad

Citations

• 98 Cal. 490
• 33 P. 550
• 1893 Cal. LEXIS 949

Syllabus

<p>Foreclosure of Mortgage upon Steamship—Jurisdiction—Sale by Receiver Pendente Lite—Perishable Property—Application of Proceeds—Judgment fob Deficiency__In an action to foreclose a mortgage upon a steamship, the court has jurisdiction to appoint a receiver pendente lite, and upon a showing after trial and order for judgment, but before entry of decree, that the steamship is deteriorating in value, and that large expense is being incurred in maintenance and repairs, has jurisdiction to order the receiver to sell it at public auction, as perishable property, and after confirmation of such sale to enter a decree reciting the facts, awarding judgment for the amount of the debt and interest, requiring the receiver to pay the amount in his hands upon such judgment to the plaintiff, and awarding execution for the balance; and the application of the proceeds of such sale, to the extinguishment of the. amount of such judgment, is such an ascertainment of the balance as warranted the court m awarding personal judgment against the mortgagor and execution for the deficiency without the necessity that a sale should take place under a decree of foreclosure.</p> <p>Id.—Construction of Code—Object of Provision Requiring Foreclosure — Mode of Ascertainment of Deficiency not Essential. — The object of section 726 of the Code of Civil Procedure, in regard to the foreclosure of mortgages upon real or personal property, is to inhibit a personal action to recover a debt secured by mortgage; to confine a recovery in such cases to one action; to make the mortgage., properly the primary fund out of which satisfaction is to be had, and to give the plaintiff a personal judgment for such balance as may be found due after the exhaustion of the mortgaged property; but it is not necessary to give effect to the evident intent of the law-makers, that there can be no deficiency judgment without a sale under a decree of foreclosure and a formal return by the sheriff, but whenever an application of