Hurt v. Pico Investment Co.

LEMMON, J., pro tem.

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his action was instituted by the assignee of a mortgage to foreclose the mortgage. The defendant, Pico Investment Company, a corporation, appeals from a decree of foreclosure. The mortgagees, James Hocking and Ella Hocking, had previously, and in a separate

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action, sought foreclosure of this mortgage. That action will be referred to as No. 194481. Prior to the assignment to the plaintiff herein, a decree of foreclosure had been entered in action No. 194481. A sale of the mortgaged premises had been held by a commissioner appointed therein, and the commissioner had received from the plaintiff in that action, the assignor of the plaintiff herein, a receipt for the full amount of the judgment. Just prior to the expiration of the period of redemption, the plaintiff herein, Arthur C. Hurt, took an assignment from the blockings of the certificate of sale, and later received from the commissioner a deed to the premises as holder of the certificate of sale. About sixteen months after the entry of the decree of foreclosure in action No. 194481, the court, upon motion of Hurt, by an order entered in its minutes, set aside the judgment. An amended and supplemental complaint was filed, and an

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summons was issued and served upon the Security Realty Company and D. H. Penny, two of the defendants. Upon motion thereafter, the court entered an order quashing the service of the

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summons, and striking the amended and supplemental complaint. Thereafter, Hurt was substituted as plaintiff, and moved the court to vacate the commissioner’s certificate of sale and the deed issued in pursuance thereof, and the satisfaction of the judgment, or, as an alternative, to issue a writ of assistance for the purpose of placing him in possession of the property. This motion was denied.

Following an abortive attempt on the part of Hurt to maintain a second suit in foreclosure, he instituted an action No. 286987, to quiet title to the property in question. The court, ir action No. 286987, decreed that the defendant, Pico Investment Company, is the owner of the property in fee, subject to the mortgage then held by Hurt. The Pico Investment Company appealed from that part of the judgment determining that the real property was subject to the mortgage, and the District Court of Appeal for the Fourth Appellate District, on October 20, 1932, affirmed the judgment.