Johnson v. Noonan

By the Court, Paine J. This action was brought against the defendants as sureties on an undertaking, given on an appeal from a mortgage foreclosure judgment. The undertaking was intended to effect a stay of proceedings, but instead of obtaining an order specifying the sum not exceeding which they would pay any deficiency, the undertaking was drawn promising to pay any deficiency not exceeding the entire amount of the foreclosure judgment. The statute provides that in such cases the proceedings shall not be stayed, unless the undertaking be “ conditioned for the payment of any deficiency which may arise upon such sale, not exceeding such sum as shall be fixed by the court or a judge thereof, to be specified in the undertaking.” The question is, whether the want of an order specifying the sum renders the undertaking void, so far as the promise to pay the deficiency was concerned. This depends upon the ques [694] tion whether it was competent for the parties giving the hn-dertaking to waive the order so far as it was intended for their benefit, and, by inserting the full amount of the foreclosure judgment, to fuliy comply with the intent and spirit of the statute, so far as the rights of the plaintiff in that judgment were concerned. We think it was competent for them to do this. The defendant in that judgment might have had an interest in having the sum fixed as low as possible, so that he might the more readily obtain security. The plaintiff might have had an interest in having it fixed as high as possible, so as to be sure to recover his debt. But it is obvious that he could not ask for a sum higher than the judgment, beyond which there could possibly be no deficiency. Any discretion to be exercised by the court or judge in fixing the sum would therefore be limited by the judgment. And if the defendant and his sureties chose to waive any effort to obtain any reduction of the sum for their benefit, and to give^an.undertaking to pay any deficiency not exceeding the entire judgment; we think they may thereby waive the necessity of any order fixing the amount. It is a well known maxim, that a person may waive provisions of law designed merely for his own benefit. This court acted on that maxim in deciding a motion made to dismiss an appeal, in another case, but upon which motion no opinion was written. The undertaking in that case was absolute, to pay all costs and damages on the appeal, without inserting “ not exceeding two hundred and fifty dollars,” which is the language of the statute. Sec. 21, chapter above referred to. The justification, however, was in the sum of five hundred dollars, which would have been requisite if those words had been inserted. We held that the limitation was designed for the benefit of the appellant and his sureties, and that if they chose to Waive it, and undertake absolutely to pay all costs and damages without any limitation, | justifying in a proper sum, they [695] might do so, and the appeal would be good. That decision is applicable here, so far as to show that it is not essential to comply with the very letter of the statute, so long as its substance and meaning are fully observed. And although this case differs from that, in the fact that the plaintiff m a foreclosure judgment might be interested in the sum to be fixed as a limitation, to the amount of the deficiency to be paid, yet when the defendant and his sureties choose to remove all question by undertaking to pay the entire judgment, if there should be so much deficiency, it seems to be fully within the reason of the decision referred to, and a most perfect compliance with the substantial meaning of the law. The respondent’s counsel also urged that such an undertaking is within the statute of frauds, as an agreement to pay the debt of another, and that it must be held void for not expressing the consideration. He entered into an elaborate argument to show that the dissenting opinion of Judge Bronson, in Thompson vs. Blanchard, 3 Coms., 335, was better law than the opinion of the court. But the argument was more ingenious than sound, and we were entirely satisfied with the decision of the majority in that case, to the effect that such an undertaking is not within the statute of frauds. We are, moreover, of the opinion that if it was, the consideration is sufficiently expressed in this undertaking, to comply with that statute. It recites that “ whereas judgment was rendered,” &c., describing the judgment, “and whereas the defendant John S. Eillmore feeling aggrieved by said judgment, intends to appeal therefrom, and wishes to stay the execution of the same, * * * Now therefore we do hereby undertake,” &e. This means nothing more nor less than that they sign this undertaking for the reason that Eillmore had appealed, and wished to stay proceedings, and for the purpose of accomplishing that object. That is all the consideration there is for such an instrument, and it was wholly unnecessary to recite the statute, or to say that in consideration that the statute had [696] provided for a stay of proceedings on giving such, an instrument, therefore they gave it. That such was the consideration, as plainly appears from the face of the paper as it now is, as it would if such language had been used. The court below ruled that the undertaking was void, so far as it promised to pay the deficiency, for the reason that no order was obtained fixing the amount of the limitation. And for that reason the judgment must be reversed, with costs, and the cause remanded for a new trial.