124 Cal. 264 | Cal. | 1899
The court below sustained the demurrers of the defendants without leave to1 amend the complaint, and thereupon entered judgment dismissing the action, with costs to the defendants. From this judgment the appeal is taken.
The complaint alleges that on or about the first day of October, 1891, plaintiff made and delivered to said defendant, Samuel Sussman, his certain promissory note in the words and figures following, to wit:
“$6,000. San Francisco, Cal., Oct. 1, 1891.
“On or before October 1, 1892, for value received, I promise to pay to the order of Samuel Sussman, in San Francisco, six thousand ($6,000) dollars, in gold coin of the United States, with interest from date at the rate of one per cent per month until paid, payable monthly in like gold coin.
“GEORGE H. WOLFE.”
That at that time plaintiff and said defendant Daniel Titus made and executed to the said defendant Samuel Sussman a deed of conveyance, in due form, of a certain lot and parcel of land in the city and county of San Francisco (describing the same). “That on or about said first day of October, 1891, said defendant, Samuel Sussman, made and delivered to plaintiff his certain memorandum of agreement in writing, and it was then and thereby understood and agreed by and between plaintiff and said defendant Sussman that said deed of conveyance, though absolute in form, was made as security for the payment of said promissory note and interest thereon, according to the •tenor thereof. That no part of said sum of six thousand dol
The complaint then proceeds to state that the defendants Titus and Sussman, for the purpose of acquiring title to the premises clear of all claims or interest of the plaintiff, and thereby to defraud him, gained control and purchased all the mortgages held by both plaintiff -and defendants in said action, and the debts thereby secured, and thereafter obtained judgment and procured a decree of foreclosure and order of sale to be made, foreclosing all of said mortgages and directing the sale of said premises. Thereafter said premises were sold by the sheriff of -the city and county of San Francisco, on said foreclosure, to said defendant Samuel Sussman, and there being no redemption therefrom, a sheriff’s deed was issued to him and re
It is also alleged “that on or about the ninth day of July, 1896, Samuel Sussman, the defendant herein, commenced an action in the superior court of the city and county of San Francisco to foreclose the said mortgage of October 1, 1891, and to recover the amount of said note of even date, with accrued interest and alleged expenditures. That said action is now pending and at issue.”
Simmered down, the substance of the complaint is, that instead of using the trust fund mentioned in the note and mortgage to Sussman of October 1, 1891, to buy in -the property at sheriff’s sale under the foreclosure proceeding then pending, the defendants Sussman and Titus bought up those claims before the same were reduced to judgment, and that instead of using the whole six thousand dollars, plaintiff avers that not quite five thousand was used.
On well-established principles of law the appellant must fail. It is elementary that no one may go into court without having some right to enforce or wrong to redress; and that facts must be stated showing such right or wrong to exist, and that mere epithets, however profusely used or vehemently expressed, will not supply the place of facts in a pleading.
It is not averred in the complaint that the plaintiff has been damaged in the least, nor are there facts stated from which such a conclusion could be drawn.
As stated in Buena Vista etc. Co. v. Tuohy, 107 Cal. 243: “The first suggestion which presents itself to the mind upon a perusal of the complaint is that the plaintiff is seeking equity without doing equity.” In that case the plaintiff had received a conveyance of property of the value of about thirty-six thousand dollars, on account of which it had paid ten thousand dollars, and given its note and mortgage as security for the balance of the purchase price, brought an action to have the notes and mortgage canceled without paying or offering to pay the balance of the purchase price of the property which it had received. (See, also, Civ. Code, secs. 1691, 3407; Maddock v. Russell, 109 Cal. 417.)
If the plaintiff should be entitled to any .relief gro wing out of the transactions mentioned in the complaint, there is no reason why it could not be amply afforded in the action now pending by defendant Sussman to foreclose the mortgage. The action of Waymire v. San Francisco Ry. Co., 112 Cal. 646, is similar to this, and in the opinion of the court there it is observed: “It seems unaccountable that plaintiffs were advised that facts, which would entitle them to a judgment nullifying the sale and transfer of the bonds, and perpetually enjoining the further prosecution of the action to foreclose the deed of trust, could not be made available as a defense to the foreclosure action.....The corporation was not at liberty to institute an action in another court, nor in the same court, to enjoin further proceedings in the foreclosure action, but was bound to
Judgment affirmed.
Garoutte, J., and Harrison, J., concurred.