Rollins v. Forbes

10 Cal. 299

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Field, J., delivered the opinion of the Court

Terry, C. J., and Baldwin, J., concurring.

This is an action to foreclose a mortgage, executed by both defendants, to secure a promissory note of the defendant Andrew Forbes. The complaint contains the usual averments in such cases, and concludes with a prayer for judgment for the amount of the note and interest, and a decree for the sale of the mortgaged premises. The defendants demurred on two grounds: first, that it does not appear by the complaint that the plaintiff is the holder of the note upon which, and the mortgage, the suit is brought j and, second, a misjoinder of causes of action, to wit: a cause of action at law upon a promissory-note against one of the defendants, and a cause of action in equity, upon a contract executed by both defendants. The demurrer was overruled, and the plaintiff took judgment for the amount of the note against the defendant Andrew Forbes, and a decree for the sale of the premises against both defendants. From this judgment and decree the defendants appeal.

The first ground of demurrer is answered by the fact that the complaint avers that the plaintiff is the owner of the note and mortgage. The second ground is frivolous ; the equitable relief follows as a consequence of the existence of the debt, and of the security for its payment. Objections to the prayer of a complaint can not be taken by demurrer. If the specific relief asked can not be granted, such relief as the case stated in the bill authorizes, may be had under the clause in the prayer for general relief, and even in the absence of such clause where an answer is filed. (Practice Act, § 147.)

It is usual for the decree, in mortgage cases, to adjudge the amount due upon the personal obligation, and direct a sale of the premises, and the application of the proceeds to its payment; but we see no objection to the formal rendition of a judgment for the amount found due. The proceeds can then be credited, by the officer making the sale, immediately upon the judgment, and no further action of the Court will be necessary to ascertain the deficiency for which the execution may issue.

Judgment affirmed.