See v. Joughin

THOMPSON, J.

The plaintiff has appealed from a judgment of dismissal of an action which was rendered against her pursuant to an order sustaining separate general and special demurrers to a second amended complaint without leave to amend the pleading. It is contended the complaint states a good cause of action to set aside another judgment of foreclosure of a mortgage in a previous action, and that the court abused its discretion in not permitting the complaint to be amended.

The second amended complaint contains three counts. The first cause attempts to allege facts constituting extrinsic fraud as grounds for setting aside a judgment which was rendered in a former action foreclosing a mortgage. The second cause is for labor performed and expenses incurred in making cer

[416]

tain improvements on the mortgaged property in anticipation of a renewal of the second mortgage which was held by plaintiff. The third cause asks the court to declare the judgment of foreclosure to be a mere mortgage to secure the plaintiff’s lien. It is alleged the plaintiff was formerly the owner of 50 acres of farm land in Los Angeles County, worth, at the time of the foreclosure suit, approximately $100,000, together with certain water rights appurtenant thereto; that Andrew Joughin loaned the plaintiff $37,000 in 1917, secured by a mortgage on the property; that in 1921 he made a further loan to her of $13,000, extending the maturity of the entire loan to March 24, 1928; that the plaintiff was formerly married to W. H. Howell, who died; that she married Robert T. See in 1927, and immediately transferred the land to him; that, with plaintiff’s consent, he then sold the land to Lafayette Adams Corporation, subject to the mortgage held by Andrew Joughin, and to a second trust deed held by Robert T. See, to secure an additional sum of $53,000, being the balance of the purchase price therefor; that Andrew Joughin orally agreed with the plaintiff that if Mr. and Mrs. See would foreclose their trust deed against the Lafayette Adams Corporation, to save Joughin, if his first mortgage were foreclosed, the necessity of waiting for the expiration of the time provided by law for redemption, he would waive one-half of the deferred interest due. to him, and would release the appurtenant water rights; that proceedings to foreclose the trust deed were not instituted, and that Andrew Joughin died testate March 29, 1932; that his will was admitted to probate and his wife, Lizzie Joughin, was appointed and qualified as executrix thereof in April, 1932; that Mrs. Joughin subsequently renewed the alleged oral agreement of her husband to waive one-half of the deferred interest and to release the water rights, but went to Europe where she remained until August 1, 1932, and failed and refused to carry out the agreement; that the agent of the executrix and the attorney for the estate informed plaintiff she “should wait for the written release of the water rights until about the 1st of August, 1932, at which time Mrs. Joughin would return from Europe”, and 'that “until Lizzie Joughin returned from Europe nothing could be done about releasing the water rights”; that in expectation of receiving a written agreement pursuant to the foregoing oral promise, the plaintiff com