order, should set forth that it is in the power of the party to comply. Er parte Cohen, 6 Cal. 318. 2. An order committing a party for contempt, and ordering that he be imprisoned until he comply with a previous order commanding him to pay into Court a certain sum of money, is an excess of jurisdiction, and void, where the party had made affidavit, which was uncontradicted, that the money had passed from his possession and control before the proceedings in contempt were commenced. Adams v. Haskell, 6 Cal. 216. 3. A judgment is not property, within the meaning of the Practice Act. Adams v. Hackett, 7 Cal. 187. 4. Where the plaintiff proceeded, under section two hundred and thirty-nine of the Practice Act, to examine his judgment debtor as to a judgment held by him against A., and after examination, obtained an order to apply the same to the judgment of plaintiff, it seems that it is not necessary to make A. a party to the proceeding. Id. 5. Though Courts are exclusive judges of their own contempts, still, a party cannot be imprisoned for neglecting or refusing to do what it appears it is out of his power to perform. Adams v. Haskell, 6 Cal. 316. 6. The right to the examination under the Code is, like the right to discovery under a creditor's action under the Revised Statutes, unqualifiedly given wherever an execution has been returned unsatisfied in whole or in part. Owen v. Dupagnac, 9 Abb. Pr. 180. 7. The rules settled in reference to proceedings under creditor's bills may be regarded as controlling the practice in supplementary proceedings, when not altered by the Code or the practice under it. Id. 8. It appeared by the affidavit upon which the order for the examination of the defendant was founded, and the fact was recited in the order, that about fifteen years previously an execution had been issued upon the judgment, and had been returned wholly unsatisfied; and that an alias execution, issued shortly before the making of the affidavit, had not been returned: Held, that the affidavit was sufficient, and that the judgment creditor was entitled to the order for the examination of the defendant. Id. 9. In supplementaty proceedings against judgment debtors, an order was made forbidding them to dispose of their property. On the day fixed by the order for their appearance for their examination, they appeared at the office of the Judge, and after waiting some time, the office being unoccupied, went away. Within an hour after the appointed time, the Judge appeared at his office, and the plaintiff also appeared, and, in the absence of the defendants, took an order appointing the referee, and continuing the injunction. In conformity with this order, the defendants appeared and submitted to an examination: Held, 1. That the original injunction had not become revoked nor inoperative, nor had the proceedings been suspended by the circumstances; and if they were, it was waived by the subsequent appearance of the defendants. 2. That the act of the defendants in paying over money subsequent to their attendance at the office of the Judge was a contempt. Reynolds v. McElhone, 20 How. Pr. 454. 10. It seems, that the provisions of the Code for proceedings supplementary to execution are limited to reaching property of the debtor, whether in his possession or in the possession of others for him, and which is conceded to be his; also money due to the debtor when the order is obtained and served. But when property or money appears to belong to him, but is in the hands of others, who make claim thereto, it should be reached through a receiver. Stewart v. Foster, 1 Hilt. 505. 11. Examinations on supplementary proceedings to a judgment can only be extended to the discovery of the property in the possession or control of the defendant, which he can deliver over. If the property is in the possession of another claiming title, no matter how fraudulent the transfer, no order can be made to compel him to deliver, and therefore no questions can be put to the debtor or witness to discover or prove the fraud. Town v. Safeguard Ins. Co., 4 Bosw. 683. 12. A judgment creditor, by commencing supplementary proceedings against the judgment debtor under section two hundred and ninety-two of the Code, and obtaining an order for the examination of the debtor, does not acquire a prior right to or lien upon the equitable assets of the debtor.-Pratt, J., dissented. 13. In supplementary proceedings, the Judge at chambers, before whom the order is returned, may vacate it, on motion of the summoned party, if the affidavit on which it is founded is insufficient, or if for any reason it appears to have been improvidently granted. Courtois v. Harrison, 1 Hilt. 109. 14. It is not necessary that the affidavit, on which the order for the examination in supplementary proceedings is founded, should be served with the order. Utica City Bank v. Buell, 9 Abb. Pr. 385, note. 15. A Judge should not, on supplementary proceedings, by a summary order, require trustees, who hold a trust fund of the debtor, to apply future income accruing therefrom to the payment of the judgment Stewart v. Foster, 1 Hilt. 505. 16. Of the facts requisite to be stated in the affidavit. Owen v. Dupagnac, 9 Abb. Pr. 180. § 240. Any debtor of the judgment debtor may pay the latter's creditor. After the issuing of an execution against property, any person indebted to the judgment debtor may pay to the Sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution, and the Sheriff's receipt shall be a sufficient discharge for the amount so paid. See N. Y. Code, § 293. J. P. § 241. Examination of debtors of judgment debtor, or of those having property belonging to him. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the Judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the Judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. See N. Y. Code, § 294. J. P. 1. Proceedings supplementary to execution, under section two hundred and ninety-four of the Code, may be taken to compel the treasurer of a joint stock association to submit to an examination, upon the allegation that he is indebted to it, though the judgment is entered against him as treasurer of such association, and the action was commenced by the service of summons upon him under the Act of 1849. Courtois v. Harrison, 1 Hilt. 2. An order in supplementary proceedings, directing that the defendant should pay over to plaintiff's attorney the sum of eighteen dollars, being money that he has paid out and disposed of since the order made by me on the twenty-eighth day of April, restraining him from disposing of his said property, was duly served on him, and while the said order remained in full force and unrevoked, and that in default of payment of the said money as aforesaid, the said M. be committed to the common jail," etc.: Held, to show substantially a contempt, and the infliction of a fine, and sufficient to justify defendant's imprisonment. Reynolds v. McElhone, 20 How. Pr. 454. 3. After a receiver of defendant's property had been appointed, in proceedings supplementary to execution against the defendant, instituted by plaintiff, the defendant's household furniture was destroyed by fire-the furniture was such as is exempt from execution, and therefore was not reached by the supplementary proceedings, but it was insured at the time of the fire: Held, that the claim for the insurance moneys was subsequently acquired property, which did not pass to and could not be enforced by the receiver. Sands v. Roberts, 8 Abb. Pr. 343. 4. Public moneys raised by a municipal corporation pursuant to law-e. g., by tax-for purposes of government, and in the hands of its fiscal officer, are not the property of the corporation, or a debt due to it, within the meaning of section two hundred and ninety-four of the Code, so as to entitle a judgment creditor of the corporation to an order requiring the officer to pay over the moneys in satisfaction of the judgment. Lowber v. The Mayor, etc., of N. Y., 7 Abb. Pr. 248. 5. A judgment against a foreign corporation may be enforced by supplementary proceedings, under section two hundred and ninety-four of the Code, to reach property belonging to it in the hands of third parties, or debts due to it from third parties. McBride v. The Farmers' Savings Bank, 7 Abb. Pr. 347. 6. Form of affidavit and order in supplementary proceedings against third parties under section two hundred and ninety-four of the Code. Seeley v. Garrison, 10 Abb. Pr. 460. 7. The orders allowed to be made in supplementary proceedings-directing the application of property and money to the payment of a judgment, and to punish for contempt (Code, §§ 297, 302)-are entirely discretionary; and an order denying an application for them is not appealable. Joyce v. Holbrook, 7 Abb. Pr. 338. 8. In order to put the debtor in contempt for interfering with his property after the order, it must be affirmatively shown that the property in question was acquired prior to the granting of the order. The order does not affect after-acquired property. (8 Paige, 568; 2 Barb. Ch. Pr. 153; 13 Id. 335;) Potter v. Low, 16 How. Pr. R. 549. 9. The wife cannot be examined, under section two hundred and ninety-four of the Code, in supplementary proceedings against her husband. Andrews v. Nelson, 7 Abb. Pr. 3, note. 10. It seems, that the proper construction of section two hundred and ninetyfour would apply to the case of a judgment against any corporation. McBride v. The Farmers' Savings Bank, 7 Abb. Pr. 347. 11. It seems, that proceedings under that section may be taken against a corporation. Courtois v. Harrison, 1 Hilt. 109. § 242. Witness required to testify. Witnesses may be required to appear and testify before the Judge or referee, upon any proceeding under this chapter, in the same manner as upon the trial of an issue. See N. Y. Code, § 295. J. P. § 243. Judge may order property to be applied on execution. The Judge or referee may order any property of the judgment debtor, not exempt from execution, in the hands of such debtor or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judgment; except, that the earnings of the debtor for his personal services, at any time within thirty days next preceding the order, shall not be so applied, when it shall be made to appear by the debtor's affidavit or otherwise that such earnings are necessary for the use of a family supported wholly or partly by his labor. See N. Y. Code, § 297. J. P. See Adams v. Hackett, (7 Cal. 202) as to the form of the order in that case, § 244. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor. If it appear that a person or corporation, alleged to have property of the judgment debtor or indebted to him, claims an interest in the property adverse to him, or denies the debt, the Court or Judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt; and the Court or Judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the Judge granting the same, or the Court in which the action is brought, at any time, upon such terms as may be just. See N. Y. Code, § 299. J. P. § 245. Disobedience of orders, how punished. If any person, party or witness, disobey an order of the referee, properly made, in the proceedings before him under this chapter, he may be punished by the Court or Judge ordering the reference, for a contempt. See N. Y. Code, § 302. J. P. 1. It is contempt for a party to refuse to obey or answer the writ, on the ground that he is a witness attending on another Court. Page v. Randall, 6 Cal. 32. TITLE VIII. ACTIONS IN PARTICULAR CASES. CHAPTER I.-Actions for the foreclosure of mortgages. SEC. 246. Proceedings in foreclosure suits. Sec. 246. There shall be but one action for the re- deposited in Court. covery of any debt or the enforcement of any secured by mortgage upon real, or personal property, bt secured falls due at different which action shall be in accordance with the provisions suits. of this chapter: In actions for the foreclosure of mort a balance still remains due, judgment shall then be dock eted for such balance against the defendant or defend- any right, secured by mortgage 07 2172 444 or lien, upon real estate or personal property, which action shall be in accordance with the provisions of this chapter. In such action, the Court shall have power, by its decree or judgment, to direct a sale of the encumbered property, (or such part thereof as shall be necessary) and the application of the proceeds of the sale to the payment of the costs and expenses of the sale, the costs of the suit, and the amount due to the plaintiff. If it shall appear from the Sheriff's return that there is a deficiency of such proceeds, and a balance still due to the plaintiff, the judgment shall then be docketed for such balance against the defendant or defendants personally liable for the debt, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued by the Clerk of the Court, in like manner and form as upon other judgments, to collect such balance or deficiency from the property of the judgment debtor.* 1. What constitutes a mortgage.-No particular form of words is necessary to constitute a mortgage; and where two instruments taken together described the property, and the amount of indebtedness, and conveyed the premises as security for the indebtedness: Held, to be a sufficient mortgage. Woodworth v. Guzman, 1 Cal. 203. 2. The words, "we mortgage the property," when accompanied by a provision for the sale of it in case the money, recited in the instrument as being thus secured, be not paid, are clearly sufficient. De Leon v. Higuera, 15 Cal. 483. 3. A deed and defeasance, to constitute a mortgage, must be between the same parties. Low v. Henry, 9 Cal. 538. 4. In mortgages there exist the right to foreclose, after condition broken, and the right of redemption from forfeiture. These two rights are mutual and recip rocal. When one cannot be enforced, the existence of the other is denied; and when either is wanting, the instrument, whatever its resemblance in other respects, is not a mortgage. Koch v. Briggs, 14 Cal. 256. 5. Where plaintiff leased a lot to B. for ten years, at a monthly rent, payable monthly-at the end of the term, B. to have two-thirds of the appraised value of the house to be by him erected, and the lease also contained this clause: "And it is further agreed, etc., that the brick house now being built, etc., shall always be and remain, as the same is hereby declared to be, mortgaged as security for the payment of the monthly rent herein stipulated:" Held, that it was a mortgage; and that it might be foreclosed on the nonpayment of the first or any month's rent. Barroilhet v. Battelle, 7 Cal. 450. 6. A conveyance and an attendant agreement for a reconveyance upon the pay Statute of 1860, page 384, § 48. SEC. 48. Whenever any action shall be brought for the foreclosure of any mortgage or lien, mentioned in section forty-seven of this act, a similar affidavit to that mentioned in said section shall be attached to the complaint in such action: and in case the same shall not be attached at the commencement of the said action, the Court in which the suit is pending, on motion of the defendant therein, shall make an order staying all proceedings in such action, until such an affidavit shall have been filed, or proof made of the payment of such taxes; and it shall be the duty of the Court, before entering a decree or judgment in any such case, to require such affidavit or proof. The mortgages and liens referred to in the foregoing section include all others than mortgages given to secure the purchase money of the property mortgaged. The oath referred to is as follows: "I, A B, do solemnly swear, that all taxes for State and county purposes, assessed on the or debt secured by this mortgage, (or lien, as the case may be) have been paid. This act is not applicable to the city and county of San Francisco. |