Opinion
Appeal from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. S. K. Dougherty, Judge.
COUNSEL:
If a party has taken judgment contrary to some agreement, promise, or stipulation made by him, a court of equity will perpetually restrain the enforcement of the same. (Freeman on Judgments, 4th ed., sec. 492.) The agreement to waive their rights by allowing judgments to go against the plaintiffs was a valid consideration for White's agreement to limit his remedy to the property sold. (Montgomery v. Gibbs, 40 Iowa 655; Hibbard v. Eastman , 47 N.H. 507; 93 Am. Dec. 467; Blakesley v. Johnson , 13 Wis. 530; Thompson v. Laughlin , 91 Cal. 313.) Whenever an act is done or a statement made by a party, which cannot be contradicted without fraud on his part, and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to that which otherwise would be mere matter of evidence. (Union Mut. Ins. Co. v. Mowry , 96 U.S. 544; Union Mut. Life Ins. Co. v. Slee , 123 Ill. 57; Harris v. Brooks, 21 Pick. 195; 32 Am. Dec. 254. See, also, Shields v. Smith , 37 Ark. 48; Hinckley v. Miles, 15 Hun, 171.)
William H. Jordan, and W. A. Richardson, for Appellants.
William E. McConnell, and J. A. Barham, for Respondent.
The complaint is insufficient in that the contract on which they based their cause of action is without any consideration and void. (Manter v. Churchill , 127 Mass. 31; Mecorney v. Stanley, 8 Cush. 85.)
JUDGES: In Bank. Beatty, C. J. Van Fleet, J., Garoutte, J., and Henshaw, J., concurred. McFarland, J., dissented.
OPINION
BEATTY, Judge
This is an action to enjoin the defendant from enforcing a deficiency judgment docketed against the plaintiffs in a foreclosure suit, and the question to be decided is whether the complaint states facts sufficient to constitute a cause of action.
It is alleged that in December, 1887, the plaintiffs, for a valuable consideration, made, executed, and delivered to the defendant their promissory note for four thousand nine hundred dollars, secured by mortgage; that they subsequently sold and conveyed the mortgaged premises to third parties, who assumed and agreed to pay the mortgage debt, but failed to do so; and that in September, 1891, the defendant being requested by Ella M. Heim to foreclose, "did agree with her that he would commence an action for such foreclosure, and upon obtaining judgment in said cause, and a decree of said court directing the sale of said property to satisfy said judgment, he, this defendant, would at such sale purchase the same for the amount of such judgment obtained, including interest and costs at that time accrued, and he, the said defendant, did expressly agree with the said plaintiff that no personal judgment in said action should ever be entered or docketed against plaintiffs, or against either of them."
It is next alleged that thereafter, in September, 1891, the defendant commenced an action to foreclose said mortgage, and in January, 1892, obtained a decree for the sale of the mortgaged premises to satisfy the unpaid balance of the mortgage debt, amounting with costs, etc., to about five thousand dollars; that the property was thereafter sold by the sheriff; that these plaintiffs, relying on the defendant's promise and agreement, failed to appear or answer in the foreclosure suit, though made parties thereto, and permitted their defaults to be entered therein, and afterward abstained from being present at the sale or taking any steps to obtain a purchaser for the mortgaged property so that their interests in the judgment might be protected and exonerated, and for the same reason they refrained from bidding at the sale, although fully able to purchase the property; that the defendant in violation of his promise bid less than the amount of the judgment and costs, and purchased the property for a sum which left a deficiency of nine hundred and eighteen dollars and forty-three cents, which he procured to be docketed as a personal judgment against these plaintiffs, and is threatening to enforce by execution. Wherefore plaintiffs pray that the enforcement of said personal judgment be perpetually enjoined, etc.
The defendant did not demur to the complaint, but answered, denying that he had ever made the promise or agreement alleged. At the trial plaintiffs offered evidence tending to prove said agreement, but upon objection of the defendant the court excluded all such evidence, on the ground that the complaint was fatally defective for want of facts constituting a cause of action. Judgment of nonsuit followed, and plaintiffs appeal.
We think the ruling of the superior court was correct. The complaint not only fails to allege any consideration for the promise of defendant not to enter a deficiency judgment, but shows that there was no consideration. The defendant had a clear and undoubted right to such a deficiency judgment, and the plaintiffs neither gave nor agreed to give or confer any benefit in consideration of its release, nor did they agree to suffer any prejudice or forego any advantage.
The promise of the defendant was, therefore, mere nudum pactum. But plaintiffs say they relied upon it, and acted upon it, [42 P. 139] and therefore the defendant is estopped from alleging or relying upon a want of consideration. This would be so if it appeared that their position was changed for the worse in consequence of their reliance on defendant's promise, but nothing to that effect is alleged. True, they suffered default, but they had no defense to the action, and they did not bid at the sale nor provide a bidder, but they do not allege that the property was worth a dollar more than it sold for, or that they would have been willing to bid more for it, or that any one would have done so. In short, the complaint is fatally defective, and did not admit the proof of facts sufficient to warrant a judgment. The decision in Thompson v. Laughlin , 91 Cal. 317, does not conflict with this view. In that case the plaintiff had waived his motion for a new trial in another action in consequence of the promise of the adverse party to satisfy the judgment, and after the time for moving had passed, an attempt was made to enforce the judgment. The enforcement of the judgment was enjoined, but it was because, in the opinion of the court, the plaintiff would have been entitled to a new trial if he had moved for it.
The judgment and order appealed from are affirmed.