49 Cal. 50 | Cal. | 1874
It is claimed by the defendants that the matters now sought to be litigated were determined in the foreclosure suit of Melton v. Commary, and that the determination was
In the present action—the purpose of which is to restrain the execution of a writ of assistance issued at the instance
The Court dismissed the cross-complaint, on the ground that it did not state sufficient facts to constitute a cause of action. A cross-complaint must state facts sufficient to entitle the pleader to affirmative relief; and it cannot be helped out by the averments of any of the other pleadings in the action. Like a complaint, it must itself contain all the requisite facts. It is not alleged in the cross-complaint that Melton acquired any interest in the land which the mortgagor held, or any equitable interest or right in the title which Kreichbaum obtained from the United States.
There is nothing in the case—and clearly nothing in the cross-complaint—from which it appears that Melton, by his purchase at the foreclosure sale, was vested with the interest which Kreichbaum acquired from the United States; and it is clear, we think, that he cannot obtain that title by means of the foreclosure proceedings and sale, unless it be first subjected, by the foreclosure decree, to the lien of the mortgage. This result can be attained only by supplemental proceedings in the foreclosure suit, and this upon allegations, not only showing his right to such relief, but also a sufficient excuse for not having brought that title be
Judgment and order affirmed.
Mr. Chief Justice Wallace did not express an opinion.