56 Cal. 481 | Cal. | 1880
The complaint charges, that, on the 10th of April, 1874, the plaintiff sold and conveyed to the defendant Hannah B. Tebbitts certain real property in the complaint described, in consideration of the payment by the grantee of the sum of one dollar, and of the amount of two certain mortgages then existing upon said real property, one in favor of Milo Sawyer, and the other in favor of R. C. Brown; that the grantee after-wards paid the Sawyer mortgage, and paid the interest on the Brown mortgage to December 21st, 1876, leaving the principal sum of the latter mortgage, together with interest thereon from December 21st, 1876, unpaid; that on the 9th of October, 1874, Hannah B. Tebbetts executed a deed of trust to the defendants Burr, Shotwell, and the Savings and Loan Society, for a portion of the said premises, which deed was accepted
It is stated in the brief of counsel for respondent (plaintiff in the Court below), and was so stated at the argument, that the Brown mortgage included other land of the plaintiff than that embraced in her deed to Hannah B. Tebbitts, which had been lost to her by reason of the latter’s failure to make the payment in accordance with her contract; and it is upon this that the argument is based, that in equity, the plaintiff is entitled to a lien upon the premises sold by her. But, as will be seen from the statement already made, the complaint does not allege any such fact. On the contrary, it .appears therefrom that both mortgages were upon the same land, sold by the plaintiff to Hannah B. Tebbitts, and were existing liens thereon at the time of the sale. One was discharged by payment; the other not having been paid, suit was commenced for its foreclosure. Even if it be assumed that it could be known in advance that there would remain a judgment over against the plaintiff after the sale of the mortgaged premises, there is nothing in the complaint to show or indicate that the property would not bring enough to satisfy the mortgage debt. Whether, if the facts stated in the plaintiff’s brief had been stated in her complaint, she would have been entitled to the relief awarded
There being no appearance on the part of the defendant Hannah B. Tebbitts, nor any appeal by her, the judgment as to her cannot be disturbed.
Cause remanded to the Superior Court of the county of Santa Barbara, with directions to said Court to modify its judgment by excepting from the vendor’s lien in said judgment adjudged' and decreed, and from the land by said judgment ordered and directed to be sold, the lot of land conveyed by the deed of trust, of date October 9th, 1874, executed by Hannah B. Tebbitts and Eufus B. Tebbitts to E. W. Burr, J. M. Shotwell, and Savings and Loan Society; and by awarding to Burr, Shotwell, and Savings and Loan Society their costs in the action.
Sharpstein, J., McKinstry. J., Myriok, J., and Thornton, J., concurred.
