Collier v. Ervin

Kjstowles, J. Tbe bill of exceptions in tbis case shows tbat tbe appellants excepted to tbe rubng of tbe court in overruling tbeir motion to strike out amendment to complaint, and motion to strike out complaint as amended. No point is made upon tbis exception in appellants’ brief, and bence it will not be considered. The third exception of appellants is tbe overruling of tbeir demurrer to tbe complaint. Tbe first ground of demurrer set forth is: [336] That the complaint does not state facts sufficient to constitute a cause of action. This demurrer is to the whole complaint, and not to any separate cause therein set forth. If there is one good cause of action set forth in the complaint, then the ruling of the court was correct. Upon a careful examination I am satisfied that the complaint contains at least two good causes of action. The second ground of demurrer is, the court has no jurisdiction of the subject of the action. I do not understand how such an objection can be urged. The complaint sets forth at least two good causes of action for the foreclosure of a mortgage upon property within the jurisdiction of the court. The third ground is, that several causes of action have been improperly united. There is no further specification under this head. All grounds of demurrer, save those above specified, namely, want of a cause of action, and want of jurisdiction, should specifically point in what the defect consists. The language of the statute will not be sufficient for this purpose. This ground of demurrer, failing to specify the defect as required, should be disregarded. There was no error in the court overruling this demurrer. The next point presented is the exception to the findings of the court. The exception is in this language simply : “ To the findings of the court.” This exception would include all of the said findings. If one of the findings is correct, the exception is too general. One of the findings both parties agree is correct. It may be also observed that an exception to a finding of fact should point out specifically wherein the finding is erroneous. This exception has no pretensions of this kind.- The fifth exception is to the decree, and is in this language : “ To the decree herein, and each and every part thereof.” ■ An appellant need not be so specific in pointing out an error of law as one of fact. Solomon v. Reese, 34 Cal. 28. The appellant in his brief points out in what the defect in the judgment consists. It is that the amount seemed by the Nader mortgage is embraced in the decree, when it was found by the court that said mortgage was insufficient in law. Both parties seem to have been satisfied with this finding. The causes of action set forth, and attempted to be set forth in the complaint, axe each for the foreclosure of a distinct and separate mortgage. The findings there that the mortgage sought to be foreclosed in [337] one cause of action was insufficient in law, disposed of tbat cause. No recovery could be bad upon it. But respondents claim tbat tbe amount secured by tbat mortgage was also secured by the Blacker mortgage ? It is true tbat this mortgage was given to indemnify Blacker. Should be be compelled to pay tbe notes set forth in the Bader mortgage ? Bader and Blacker were both bound in certain notes with Ervin and Metcalf. Tbe Bader mortgage was executed to him by Ervin and Metcalf to indemnify them should be be compelled to pay their notes. Tbe Blacker mortgage was executed to him by these parties to indemnify him should be be compelled to pay these notes, and one other note payable to W. B. Howard for $1,000. But the cause of action which seeks to foreclose the Blacker mortgage does not set forth that Blacker ever paid the notes described in the Bader mortgage. In the cause of action in which it is sought to foreclose the Bader mortgage it is specifically alleged that Bader paid their notes. It cannot be maintained that, when a mortgage is given to indemnify a party against the payment of several distinct notes, and he is compelled to pay but one of them, he can foreclose his mortgage to satisfy the amount of all the notes. Tet tins is what is sought to be accomplished in this decree. The third cause of action is for the foreclosure of a mortgage executed to Collier to secure the payment of a note executed to him for $800. The court below, in the decree, made this finding: “ That the mortgage of March 15th, A. D. 1869, to the plaintiff to secure the payment of $800, as well as the Blacker mortgage, is sufficient in law to entitle the plaintiff to a foreclosure thereof for the amounts due upon the several notes in said complaint described, after deducting the payment thereon, as therein set forth,” etc. This is nothing more than a finding of a conclusion of law, and it is erroneous. These two mortgages, under the facts set forth in the complaint, are not sufficient to ■ warrant a foreclosure for the amounts paid in the notes described in the Bader mortgage. The amount paid by Bader in these notes is embraced in the decree herein. The decree is, therefore, erroneous. The decree is also irregular. A similar decree was considered by this court in the case of Rader v. Ervin, 1 Mon. 632, and so pronounced. While it may be proper under our Code practice, for a party to unite [338] in the same complaint distinct causes of action seeking to foreclose several mortgages, a proposition which it is not now necessary for this coiu't to determine, still, in any view of the case, the decree should find the amount due on each mortgage, the priority of each, and if they do not cover the same property, then the decree should be so drawn as not to authorize the sale of property not embraced in a mortgage to satisfy it. It is probably true that all of the property described in the Collier mortgage is embraced in the Blacker mortgage; but all of the property described in the Blacker mortgage is not embraced in the Collier mortgage. It was not proper then that all of the property described in the Blacker mortgage should be ordered sold to satisfy the Collier mortgage. The decree does not determine the priority of these mortgages. While this case presents some unusual complications, a decree can undoubtedly be entered that will preserve the rights of all pai'ties. Again, in the decree, the court seems to base its findings upon the supposition that the several actions are based upon promissory notes. This is true only of the last cause of action. The first and second causes of action should be based upon the fact that the notes set forth therein had been paid by either Bader or Blacker, and that Ervin and Metcalf were bound to contribute to these parties for money paid and expended for their use. Eor the reasons above, this decree is reversed, and the cause remanded for further proceedings. Decree reversed.