Woodward v. Brown

Citations

• 119 Cal. 283
• 51 P. 542
• 1897 Cal. LEXIS 893

Syllabus

<p>Foreclosure of Mortgage—Conditional Liability of Mortgagor—Release of Part of Security for Less than Value—Deficiency.—The mortgaged premises constitute the primary fund out of which the mortgage debt must be paid, and the liability of the mortgagor is contingent on a sale of the mortgaged premises under foreclosure and an application of the proceeds to the debt and costs, and the deficiency which the code directs may take the form of a personal judgment is a deficiency arising from the sale of all the mortgaged premises, and not a part of it; and if the mortgagee arbitrarily releases portions of the mortgaged premises for less than their actual value, without the consent of the mortgagor, he cannot, on foreclosure, hold the mortgagor liable to a judgment for the apparent deficiency, but must credit the mortgagor with the actual value of the portions released, and if there would have been no deficiency, if the mortgagee had not released any part of his security, he cannot hold the mortgagor for any deficiency.</p> <p>Id.—Deed by Mortgagor—Personal Covenant against Encumbrances— —Release to Grantee.—A covenant against encumbrances, expressed or implied, in a bargain and sale deed by the mortgagor, is a personal covenant, and is not appurtenant to the land nor available to the mortgagee; and a release given to such grantee by the mortgagee, without the consent of the mortgagor, for less than the value of the ■ land released,- cannot affect the right of the mortgagor to have the value of such land applied upon the mortgage debt, as respects a deficiency judgment.</p> <p>Id.—Decree of Foreclosure—Sale of Mortgaged Lots in Inverse Order of Alienation.—Where portions of the mortgaged premises have been alienated by the mortgagor, the decree of foreclosure must order a sale of the premises, subject to the mortgage, in the inverse order of their alienation.</p> <p>Id.—Effect of Partial Releases by Mortgagee—Rights of Purchaser of Lots not Released—Notice to Mortgagee.—Th