Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing (Denied, Granted) 36 Cal. 390 at 400.
Appeal from the District Court, First Judicial District, Santa Barbara County.
COUNSEL:
Dibblee having bought after final judgment in the action brought by Temple, by operation of law he had notice of the final decree in that action. Such is the decision of the former Court of this State in Grattan v. Wiggins, 23 Cal. 16. Dibblee purchased after a final decree. In the case just cited (see 23 Cal. 38) it is held that section twenty-seven of the Practice Act, in regard to notice of lis pendens, " applies only to actions pending, and not to judgments and decrees rendered, which at common law, it would seem, were notice to all persons." (See cases cited in same case, page thirty-nine, on this point.) If this position be correct, Dibblee, having purchased after final decree and while the action was pending, was by force of law affected with notice of all the proceedings in the action brought by Temple against Olivera and wife, and could not be held to aver anything to the contrary. Indeed, the referee does not find thathe did not have notice when he (Dibblee) purchased.
Now, the other party (Lobero's wife) purchased forty-six days after the judgment by default was taken on the sixth day of November, 1865, and we contend that the same rule applied to her. The entry of judgment by default on that day was the beginning of judgment. (See Prac. Act, Sec. 150.) And by force of law, if that is the case, Clara Cota de Lobero must stand charged with notice.
The final decree related back to the default, and became a part of the judgment, and gave notice to all persons dealing with the mortgaged premises. The doctrine of relation is expounded in Landes v. Brandt, 10 How. U.S. 372.
But whether charged or not with notice of the proceedings in the action of Temple, the purchasers had notice of his mortgage, which was recorded; and whether the appellant is held to be a redemptioner or purchaser from Temple, he is alike entitled to relief. If he is a redemptioner, he is subrogated to the rights of Temple. (Prac. Act, Sec. 232.) If he is a purchaser, he is alike subrogated to the rights of Temple. By paying the full amount of the judgment as a subsequent mortgagee, or his successor in interest, he is entitled to an assignment of the judgment, mortgage, note etc., and all the rights of said Temple. A Court of equity would regard him as such assignee, for the facts found show that such was the intention of the appellant Abadie--to obtain all the rights of Temple. A Court of equity, for the purposes of justice, regards that as done which ought to be done. See the following cases on equitable assignments: Daggett v. Rankin, 31 Cal. 322; Racouillat v. Sainsevain, 32 Cal. 376; Decker v. Kernan, 2 Kern. 361; Love v. S. N. L. Co., 32 Cal. 649-653. In Averill v. Taylor, 4 Selden, 54, it is held that upon the redemption of a mortgage the redeeming party has a right to an assignment of the mortgage redeemed, and if it be recorded, a right to require the mortgagee to acknowledge the assignment.
If, then, the appellant, Abadie, is the assignee in law of the rights and remedies of Temple, he is entitled, under the decisions of this Court, to have the decree opened that he may make the proper parties defendant, to have the sale set aside, and the Temple mortgage and his own (if anything is due on it) foreclosed as to all the defendants; and this is what he is tryingto do. Such is the decision of the former Supreme Court in Goodenow v. Ewer, 16 Cal. 461. This decision was again upheld in Boggs v. Hargrave, 16 Cal. 559, and approved in Heyman v. Lowell, 23 Cal. 106-108.
Williams & Thornton, for Appellant.
Patterson, Wallace & Stow, for Respondent.
Abadie was not a statutory redemptioner at the time he undertook to redeem from Temple. If he was a redemptioner, he was made so by the purchase of the cattle on execution sale. He did not buy the contract for pasturing them, nor the mortgage given to secure the contract. The notice given by John Temple to the Sheriff that Guillermo Abadie had redeemed from the sale of February 6th, 1866, did not constitute Abadie a redemptioner. The payment of the money to Temple had just the same legal effect, so far as it bore upon Abadie's character and right as a redemptioner, as though the money had been paid to the Sheriff himself. The payment directly to Temple is made by the statute equivalent to a payment directly to the Sheriff for the benefit of Temple. (Prac. Act, Sec. 233.) The payment or deposit of the money with either Temple or the Sheriff was necessary, but it was not all that was necessary; the relation to theproperty to be redeemed which the statute prescribes could not be supplied by the mere payment of money, and we have shown that Guillermo did not occupy that relation to the mortgaged premises.
Appellant's counsel seeks to rest this proceeding upon the series of cases in this Court commencing with Goodenow v. Ewer, and Boggs v. Hargrave, 16 Cal.
It will be seen that the " supplemental complaint" is not drawn upon the theory of relieving a purchaser of property when there has been an insufficient foreclosure. The plaintiff does not aver that the foreclosure formerly had in the Temple case is insufficient, nor that there was any mistake. He sets up the decree in the Temple case, and claims that he redeemed from the sale under it; he does not claim to be or to become the assignee of the note or mortgage to Temple, nor the assignee of the decree itself; he avers that he obtained " the requisite Sheriff's deed; " he claims that the defendants confederated to defeat that decree, and, as we have seen, then abandons that charge on the trial. The remainder of the bill is taken up with the averments upon which he seeks to foreclose the other mortgage given to " Domingo Abadie & Brothers."
JUDGES: Sawyer, C. J. Crockett, J., concurring specially.
OPINION
SAWYER, Judge
On motion for rehearing, the Court, by Mr. Chief Justice Sawyer, delivered the following opinion:
It may be conceded that, in an action to foreclose a mortgage by the indorser of a note and assignor of a mortgage made to secure it, regularly transferred in the ordinary course of business, it would not be necessary to make the mortgagor and assignor a party; for, if this be so, as it undoubtedly is, it by no means follows that the mortgagee would not be a necessary party to a suit by one claiming to establish against him, as the basis of his title to foreclosure, a right to be regarded as an equitable assignee upon a state of facts which gives him no title at law, and no right that can be recognized, except as it may be established in, and worked out through the aid of, a Court of equity. But the question in this case is not, who would be proper parties in an original suit brought by Abadie to foreclose a mortgage assigned to him; nor whether, with the assent of Temple, the judgment might be opened and a supplemental complaint filed and prosecuted in his name, as suggested in Boggs v. Hargrave; nor whether, if, after having received the money upon a claim by Abadie to redeem under the statute, and recognize the redemption, Temple refused to allow the use of his name for the purpose of opening the judgment and further prosecution of the suit, the Court would compel him, in a proper proceeding, to assign his demand and judgment to Abadie, or to allow the use of his name, or would grant relief in an independent action against Temple and the mortgagors and their grantors, setting up such refusal of Temple as an excuse for not proceeding in his name in the original suit. The appellant has not presented himself in such a way as to make it necessary to determine any of these questions. Standing as he does, viewing his right in the light most favorable to himself, in the position of a mere statutory redemptioner from a sale on execution, or of an assignor of the certificate of sale, we suggested some difficulties in respect to his obtaining relief of the kind here sought. But we decided the case on the ground that the plaintiff was not entitled to vacate Temple's judgment, and seek the relief in his own name in Temple's suit, through a proceeding to which Temple and his representatives are total strangers.
The case, in short, is this: Temple brought suit against the mortgagors to enforce his mortgage lien, making Abadie a party defendant, but without serving him; so that Abadie, in effect, though named as defendant in the complaint, was no party to this action; and the suit was between Temple, as plaintiff, and the original mortgagors, as defendants. Final judgment was entered in favor of Temple, ordering a sale of the mortgaged premises, and a sale was accordingly had, and Temple became the purchaser. This is all there is of the proceeding in the case to which Temple or his representatives was ever a party. Temple died, leaving the matter in this condition, so far as anything appears in a form having any binding force on him or his representatives. After his death, upon an ex parte application of appellant, Abadie--a stranger to the action--the judgment was vacated, and Abadie substituted as plaintiff. We say ex parte, because Temple, the sole plaintiff in the case, was dead, and nothing had been done to bring in his representatives. Lobero and wife and Dibblee--the latter being the only defendant who then had any interest in the premises, and all of whom had become interested in the property, without notice, pending the action--had not yet been made parties to the suit; and the original defendants, who, at that time, had no interest in the land, do not appear to have been notified. After thus obtaining ex parte a vacation of the judgment, and an order substituting himself as plaintiff, Abadie filed what he calls a supplemental complaint in his own name against defendants Lobero and wife and Dibblee, alleging the conveyance by the mortgagors of the mortgaged property to them successively pendente lite, and that he himself had redeemed from Temple, and acquired his interest. He then introduces as a new cause of action another subsequent mortgage from the original mortgagors, Oliverez and wife, to third parties, which he claims to have acquired through certain other proceedings, and seeks to have this foreclosed. He also alleges a conversion by Oliverez and wife of one hundred twenty-three head of steers, one hundred seventy-seven head of breeding cows, and fifty calves, of the value of seven thousand dollars, the value of which he seeks to recover, and have the amount satisfied out of the proceeds of the mortgaged premises. In short, without noticing various other singularities, the whole proceeding shown by the record is a legal curiosity--a novelty in judicial procedure. This entire proceeding is utterly void as to Temple and his representatives. Abadie is an intruder into Temple's action, after he has obtained a judgment. Temple and his representatives are in no way affected by his action. The facts upon which Abadie seeks to base his claim might be shown by Temple to be fabricated. At all events, Temple has not been heard, and is not affected by the proceeding, and the defendants would not be protected as against Temple's representatives, by any judgment that might be rendered in the case. The original judgment, and, of course, all proceedings under it, were vacated, and a new plaintiff has assumed control. The next judgment, including accumulated interest, may be for a much larger sum, and the question might arise, who is entitled to the excess over the former judgment? Appellant has improperly and illegally thrust himself into Temple's suit, and he has no right to manage or direct it, or to any relief in it, under the circumstances in which he presents himself. If this proceeding should be sanctioned, there is no judgment rendered that could not be vacated, and the original plaintiff displaced, upon an ex parte application of a stranger and intruder, and there would be an end to everything like an orderly administration of justice. For aught that appears, Temple's representatives are ignorant of this proceeding to the present day. After Temple's death, no valid movement in the case adverse to his interest could be made without bringing in his representatives and giving them an opportunity to be heard--certainly none that should displace him as plaintiff in the action.
CONCUR
CROCKETT
Crockett, J.: concurring specially:
I concur in the judgment.