53 P. 583 | Ariz. | 1898
On the twenty-fourth day of April, 1893, one John S. Armstrong executed a mortgage on certain real es
The errors assigned are numerous, but as many of them are upon immaterial points and some are without merit it will only be necessary to consider those that go to the vital issues in the case. The first material proposition that is alleged is in support of the demurrers of the several defendants, on the ground that the grantees of the original mortgagor were not liable to a direct action by the mortgagee, because no privity of contract was shown in the pleadings to exist between said grantees and the mortgagee, and the action was not brought in the name of, or for the benefit of, the mortgagor. This is a mere matter of procedure, and is governed by the lex fori. In those jurisdictions where the common-law practice is yet observed one course is followed, while another rule obtains in those jurisdictions where the code practice has been adopted. The rule under the one procedure is very concisely stated by Mr. Justice Gray in the case of Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, in the following language: “.The only remedy of the mortgagee against the grantee was, as adjudged upon great consideration in Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, by bill in equity,
The next assignment of error is based upon the proposition that the former judgment is conclusive against the parties to the action, and the plaintiff in this case has already had one judgment, and cannot bring a second action. This suit is brought for the purpose of foreclosing the mortgage against one who was not a party to the former suit, and whose nonjoinder as a party in a former suit is explained in the pleadings herein, by the ignorance of the' plaintiff of the said defendant’s interest in the suit or title to the property; and that ignorance is further explained by the allegation in the pleading that upon the conspiracy and contrivance of the said defendant and other defendants who are joined with him all the interest of the said defendant in the suit, and the claim
The next assignment of error is based upon the proposition that because the plaintiff has made a mistake of law the court has no jurisdiction to grant relief. The authorities quoted fully sustain the doctrine laid down by Justice Story that ‘ ‘ a naked mistake of law, unattended with any special circumstances, such as misplaced confidence, misrepresentation, or undue influence, will furnish no ground for the interposition of a court of equity; and the present disposition of courts of equity is to narrow, rather than to enlarge, the operation of exceptions.” This doctrine, however, refers, to eases where a mistake of law has occurred where the facts are known and no fraud or deceit has been practiced; whereas, in this instance the relief is asked on the ground of mistake in fact as well as law, and for which mistake the fraud and deceit of the defendants are alleged in the pleadings to be responsible. In the case at bar, if any mistake of law was made, it was certainly induced by the fraudulent withholding from the record of the deed from Daggs to Johns until after the records were searched, the foreclosure suit begun, and the lis pendens had been filed.
The next and last assignment of error worthy of our attention is, that the court rendered a personal judgment against the defendant A. L. Johns for the full amount of the debt sued on, by reason of his liability under the terms of his deed from- R. E. Daggs, after having adjudged and decreed the said deed to be fraudulent and void, and after having, for that reason, set the same aside. An examination of the record discloses the fact that in folios 264 and 265 the judgment declares: “It is hereby ordered, adjudged, and decreed that
Street, C. J., Sloan, J., and Davis, J., concur.