APPLICATION by J. L. King to set aside an order of sale made by the Superior Court of the city and county of San Francisco on a foreclosure of mortgage.
A judgment had been rendered against one Wilkins for the sale of certain premises mortgaged by him, and for payment of any deficiency arising upon the sale. King was a purchaser from Wilkins and a defendant in the foreclosure suit, and was in possession of the property at the date of the decree, and his appeal therefrom to the Supreme Court. On appeal, he filed an undertaking in the sum of three hundred dollars as required by section 941 of the Code of Civil Procedure, and also an undertaking to cover waste and the value of the use and occupation, but gave no undertaking for deficiency.
E. A. & G. E. Lawrence, for Petitioner.
J. R. Brandon, for Respondent.
On the former hearing in Department Two, (11 P. C.L.J. 252), it was held that where an appeal is taken from a judgment for the sale of mortgaged premises, by one not in possession thereof, the sale might be stayed without filing an undertaking for [1 P. 349] the payment of a deficiency arising upon such sale; and that the petitioner, not being in possession of the mortgaged premises, was entitled to have such sale stayed without filing such undertaking. It now transpires that the petitioner was in possession of such premises, and as he has not filed an undertaking for the payment of the deficiency, if any shall arise on said sale, it is not stayed by the appeal. It follows that the order made in department must be vacated, and the application for a stay be denied.