Hurt v. Wilson , 38 Cal. 263 ( 1869 )

Sawyer, C. J., delivered the opinion of the Court:

The complaint states a good cause of action against Wilson, and his motion to dismiss was properly denied. The assignment of the debt to the plaintiff carried with it the security, and entitled him to a judgment for sale of the premises to pay the debt, independent of the second mortgage by the trustee. Had Zabriskie made no mortgage, the plaintiff would have been entitled to the relief obtained upon the allegations of the complaint and the facts found by the Court. The only sum recovered was the original indebtedness, with interest at the legal rate, and the costs of suit. The plaintiff was entitled to a judgment for this sum, and to an order for the sale of the premises without reference to the mortgage made by Zabriskie.

We do not fully comprehend the fifth, sixth and seventh points of appellant, or perceive how they arise on this record. Judgment and order denying a new trial affirmed.

Rhodes, J., expressed no opinion.