217 P. 808 | Cal. Ct. App. | 1923
This action was instituted to foreclose a mortgage executed by the defendants, George A. Binney and Jennie I. Binney, his wife. These defendants interposed a demurrer to the complaint which was overruled and upon their failure to answer judgment by default was rendered against them. The transcript on appeal contains no copy of defendants' demurrer, but it is conceded by each party to the action that it was a general demurrer. The complaint contained the following allegation: "That on the 22d day of March, 1912, this plaintiff and her husband, E. O. Kennard, by grant deed for a consideration of twenty-five thousand ($25,000.00¢) dollars sold and delivered to George A. Binney and Jennie I. Binney his wife the herein mortgaged premises and certain water and water rights, which water and water rights were afterwards represented by and converted into thirty shares of the Glendora Consolidated Mutual Irrigating Company stocks of a value of three thousand ($3,000.00¢) dollars, and two shares of Cienega Springs stock with a value of two hundred ($200.00¢) dollars, and at the same time and place the said purchasers gave back a purchase money mortgage to said Flora H. and E. O. Kennard covering the same premises in question and the said thirty shares of Glendora Consolidated Mutual Water Company stocks and the two shares of Cienega Springs stock."
A copy of the mortgage was annexed to the complaint as an exhibit and the mortgaged property was described therein as follows: "The south 10 acres of the east one-half of the southeast quarter of the southeast quarter of section 30, township 1 north, range 9 west, S. B. M., including all buildings and improvements thereon or that may be erected thereon; together with all and singular the tenements, hereditaments and appurtenances, water and water rights, pipes, flumes, and ditches thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof."
The court in the decree of foreclosure found the amount due on the note and adjudged the same to be a valid lien upon the ten acres of land above described, and upon "Thirty shares of Glendora Consolidated Mutual Irrigation *734 Company water stocks, and two shares of Cienega Springs Company water stocks."
Defendants appeal from the judgment and advance two reasons why the same should be reversed: First, that there is no allegation in the complaint warranting the court ordering the sale of said water stock; and secondly, that the prayer of the complaint fails to ask for the sale of the water stock.
[1] Appellants' first contention is that the complaint, having set out the mortgage in full, any allegation therein contrary to the terms of the mortgage to the effect that the shares of water stock were covered by the mortgage is surplusage, that the same must be so regarded by the court, and that such an allegation cannot support a judgment based thereon.
In Linz v. McIver Becker,
The further objection is made to the judgment that, being a judgment on default, it grants relief in excess of the prayer of the complaint, in that the prayer of the complaint only asks for a sale of the "lands and premises," while the judgment decrees a sale of the land described in the mortgage, being the ten-acre tract hereinbefore described, and "thirty shares of Glendora Consolidated Mutual Irrigation Company water stocks, and two shares of the Cienega Springs Company water stocks." Appellants argue that as the prayer of the complaint asks only for the sale of the "lands and premises," and there is no allegation in the complaint that the water stock is appurtenant to the land, that it will be assumed that the water stock referred to is that of a private corporation which is personal property and not appurtenant to the land unless issued as required by section 324 of the Civil Code. With this contention of appellants we cannot agree. [2] Upon the facts stated in the complaint, the stock was appurtenant to the land, Every presumption must be in favor of the regularity of the proceedings upon which the judgment is based and of the validity of the judgment, and where any error is claimed, it is the duty of the appellant to produce the record clearly showing such error. (United States Film Co. v. United States Fidelityetc. Co.,
There appears to be some confusion in the use of the names of the water companies whose shares of stock are involved in this action. In some instances the Glendora Consolidated Mutual Irrigation Company is referred to as the Glendora Consolidated Mutual Irrigating Company and in others as the Glendora Consolidated Mutual Water Company, and the Cienega Spring stock is referred to as the Cienega Springs Company water stocks, Cienega Springs water stocks, and the Cienega Springs Water Company stocks, but in our opinion these irregularities do not invalidate the judgment.
We find no errors in the record sufficient to justify a reversal of the case and therefore the judgment is affirmed.
Conrey, P. J., and Houser, J., concurred.