Mascarel v. Raffour , 51 Cal. 242 ( 1876 )

By the Court:

The action is to foreclose three mortgages, two of which are upon the same parcel of land and none other, while the third is also upon that parcel and an adjoining parcel. The decree forecloses the three mortgages upon the first parcel; but omits to foreclose the third mortgage on tho second parcel; and orders a personal judgment against the mortgagor for the deficiency, if there be one. The mortgagor appeals, and makes the point that under section 726 of the Code of Civil Procedure there can be no personal judgment against the defendant for the deficiency until the mortgage security has been entirely exhausted. But by the foreclosure the mortgage is merged in the judgment, and a new action could not be maintained to foreclose the mortgage as to the omitted lot. A mortgage cannot be foreclosed by piecemeal in that way, and the legal effect of omitting from the decree of foreclosure a portion of the mortgaged premises is a waiver of the mortgage lien as to that portion. The mortgagor, therefore, cannot complain of the decree.

But the court erred in the amount awarded to the plaintiff for counsel fees under the mortgage of March 10, 1873. The proper amount was two hundred and sixty-five dollars and seventy cents, being five per cent, on the principal and interest, which the court finds was due at the date of the decree. But the court awarded two hundred and ninety-eight dollars and fifty cents, being an excess of thirty-two dollars and seventy-five cents over the proper amount. The judgment is hereby modified accordingly, by deducting from the amount thereof the sum of thirty-two dollars and seventy-five cents, and as so modified is affirmed.

Remittitur forthwith.