Kreichbaum v. Melton, 49 Cal. 50

Kreichbaum v. Melton

49 Cal. 50 | Cal. | 1874

By the Court, Rhodes, J. :

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 *54adverse to the plaintiffs in this action. The complaint in that action was in the usual form, and it contained an allegation that Kreichbaum had purchased the mortgaged premises from the mortgagor after the execution of the mortgage, and that, as a part of the consideration for such purchase, he promised to pay to Melton the mortgage debt. Kreichbaum and wife interposed a general denial, and also averred that in 1868—which was subsequent to the execution of the mortgage—the premises were public lands of the United States; that Kreichbaum settled upon the same, filed his declaratory statement, etc., and in October of that year purchased the same and received a certificate of purchase therefor. The decree of foreclosure was rendered October 28, 1870, and it was thereby adjudged and decreed that the mortgaged premises be sold to satisfy the mortgage debt and costs, and that the defendants “be forever barred and foreclosed, from and after the delivery of the said sheriff’s deed, of and from all equity of redemption and claim, of, in, and to the said mortgaged premises, and every part and parcel thereof, with the appurtenances, so far as the rights and title vested in defendant P. Commary, at the date of the mortgage above named, and which was acquired from him by the defendants Kreichbaum.” It is the rule in ordinary cases of foreclosure, that the title ordered to be sold is only the title which was held by the mortgagor, and that rule is applicable in all foreclosure cases, except, perhaps, when facts of an equitable character are stated which show that a title acquired by the vendee of the mortgagor, after his purchase from the mortgagor, should also be subjected to the lien of the mortgage. No facts of that character are stated in the complaint. Our conclusion on this point, based on a construction of the decree, and in view of the rule just stated, is that the decree ordered the sale of only the right and title which the mortgagor held, and did not include or affect any right or title which Kreichbaum acquired after his purchase from the mortgagor.

In the present action—the purpose of which is to restrain the execution of a writ of assistance issued at the instance *55of Melton, the mortgagee, who purchased at the foreclosure sale—Kreichbaum and wife allege the settlement and preemption claim of Kreichbaum, his purchase from the United States in October, 1868, and the issuing of a patent to him by the United States on the 10th of May, 1870. The defendant alleges, in his cross-complaint, that when the mortgage was executed, Commary and wife resided on, and had the possession of the mortgaged premises, and had valuable improvements thereon; that they sold the premises to Kreichbaum, and delivered the possession to him, and that the latter, in part consideration thereof, agreed to pay the amount due on the mortgage to Melton; that the purchase and acquisition of the possession of the premises by those means, enabled Kreichbaum to acquire the right of preemption to the premises. The prayer is that the plaintiffs be ordered to execute to Melton a deed, conveying to him the title which they acquired from the United States.

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*56fore the Court in the original proceedings. This is the doctrine of Goodenow v. Ewer (16 Cal. 469).

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.