76 P. 388 | Cal. | 1904
The plaintiff and the defendants Graf and Benjamin respectively and separately appeal from the judgment in favor of defendants Stevinson and Humboldt Savings and Loan Society, the appeal being based upon the judgment-roll alone. The complaint is in the ordinary form of an action to determine and quiet title to certain lands embracing about five hundred acres. The defendant Stevinson answered, claiming title in himself and asking a decree accordingly. The defendants Benjamin and Graf each separately filed a cross-complaint setting up certain interests in the land, and asking that their respective titles thereto be quieted. Numerous questions *556 are discussed in the briefs, but in view of the conclusion we have reached upon the principal question, which is determinative of the case, we do not deem it necessary to discuss the others.
The court below gave judgment that defendant Stevinson was the owner of the land in fee simple, and that he and the defendant Humboldt Savings and Loan Society recover their costs of the appellants herein. Stevinson's claim is based on a sheriff's sale made on a decree of foreclosure in an action brought by the Humboldt Savings and Loan Society against Elizabeth Ann March and others in the superior court of San Joaquin County. That action was begun on October 7, 1893, against the mortgagors alone, and a notice of the pendency of the action was filed in the recorder's office of said county on the same day. On the 11th of October, 1893, the mortgagors, who were then the owners of the land, subject to the foreclosure proceeding, executed a deed conveying to one George B. Sperry, a defendant herein, a certain parcel of the mortgaged land containing about one hundred acres. This deed was recorded on October 12, 1893, and Sperry immediately took possession of the land so conveyed to him, and continued to occupy and possess the same until the time of the foreclosure sale. The appellants each claim rights in the land based on execution sales upon judgments rendered against one or more of the mortgagors subsequently to the execution of the deed to Sperry and prior to the foreclosure sale. The plaintiff in his complaint does not mention this foreclosure sale. The cross-complaints of the defendants Graf and Benjamin are bills in equity, seeking to set aside the sale upon the sole ground that the same was not conducted in the manner directed in the decree of foreclosure. The mortgage upon which the decree was based provided that, in the event of foreclosure, the premises, at the option of the mortgagee, might be sold in several parcels, or as a whole in one parcel. The decree of foreclosure, which was entered upon December 13, 1894, directed that the premises be sold "in one parcel as a whole and as one farm." The sale did not take place until November 27, 1899. The plaintiff in the foreclosure suit and several of the mortgagors, and also said Sperry, were present at the sale. Sperry and the mortgagors present requested the sheriff to offer the land in separate *557 parcels, first offering the portion of the property not conveyed to Sperry by the deed above mentioned. The plaintiff consented to this, and thereupon, in pursuance of this agreement, the sheriff first offered the property remaining to the mortgagors after the conveyance to Sperry, whereupon Sperry bid therefor the sum of $16,722, which was $80.50 in excess of the amount necessary to pay the mortgage debt, interest, and costs. The court finds that the sum bid by Sperry was a fair and reasonable price for the premises sold to him, and that the premises so sold to him were not then of any greater value than the sum bid. Thereafter the sheriff's deed was made in pursuance of the sale to Sperry, and the defendant Stevinson has since acquired all the interest of Sperry under the foreclosure sale, and also his title to the one hundred acres previously purchased by him from the mortgagors. It is not claimed by the appellants that there was any fraudulent or unfair practices in connection with the foreclosure sale. The sole objection to the validity of the sale is, that the sheriff disobeyed the directions contained in the decree that the premises be sold as a whole and as one farm. It is contended that the appellants, having succeeded to the interests of some of the mortgagors, had a right to have the sale made in strict accordance with the directions in the decree, and that they were prejudiced by the sale as made, because, if the whole of the property had been sold, there would have been a larger surplus to divide among those interested therein, in which case they claim that they would have been entitled to a larger sum of money than they will receive under the sale as made.
This contention is based chiefly on the theory that they would have been entitled to some portion of the proceeds of the land sold to Sperry in case that tract had been included in the foreclosure sale. This, however, is a misconception of their rights in the premises. Under section
The only ground upon which they could claim that they were prejudiced would be upon the theory that, if the whole tract had been sold together, it would have brought more as a whole than it did upon the parcels being sold separately, and that the surplus to which they would have been entitled would have been somewhat increased. It is well settled that inadequacy of price alone is not a sufficient ground for setting aside a foreclosure sale.(Central Pacific R.R. Co. v. Creed,
There was no error in rendering judgment in favor of Stevinson and Humboldt Savings and Loan Society against the appellants for costs. Humboldt Savings and Loan Society disclaimed any interest in the premises, and filed its disclaimer before the cross-complaints of the appealing defendants were filed. So far as the plaintiff is concerned, its disclaimer prevented the plaintiff from recovering costs against it. Its costs against the plaintiff could not exceed the amount necessary to enable it to file its disclaimer. Conceding this to be error, it would be for a sum too trifling to justify this court in modifying the judgment. As to the other appellants, by their cross-complaints they made it necessary for the corporation-defendant to continue its appearance in court, and, whatever costs it was thus compelled to incur, it is clearly *560 entitled to recover against the parties who unjustly brought it into court. It will not be seriously contended that Stevinson was not entitled to his costs against all the parties.
The judgment is affirmed.
Angellotti, J., and Van Dyke, J., concurred.
Hearing in Bank denied.