Kennard v. Binney

California Court of Appeal Jul 3, 1923 No. Civ. No. 4183.Published

Before: Curtis

AI Brief

AI-generated · verify before citing

Holding. A complaint's variance between general allegations and an attached exhibit cannot be challenged by general demurrer, and in the absence of a contrary record, the court will presume water stock is appurtenant to the land and thus included in a foreclosure prayer for 'lands and premises.'

Issues

Whether a variance between a complaint's allegations and an attached mortgage exhibit is fatal upon general demurrer.
Whether a default judgment for the sale of water stock is invalid when the prayer only requests the sale of 'lands and premises.'

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule in this state is that a variance between the direct allegations of a complaint and a copy of an instrument set forth therein, or an exhibit attached thereto, can be successfully attacked only by special demurrer”

“If the water stock was appurtenant to the land, then it was a part and parcel thereof and would pass by a conveyance thereof, whether mentioned in the conveyance or not.”

[733]

CURTIS, J.

This action was instituted to foreclose a mortgage executed by the defendants, George A. Binney and Jennie I. Binney, his wife. These defendants interposed a demurrer to the complaint -which was overruled and upon their failure to answer judgment by default was rendered against them. The transcript on appeal contains no copy of defendants’ demurrer, but it is conceded by each party to the action that it was a general demurrer. The complaint contained the following allegation: “That on the 22d day of March, 1912, this plaintiff and her husband, E. 0. Kennard, by grant deed for a consideration of twenty-five thousand ($25,000.00(5) dollars sold and delivered to George A. Binney and Jennie I. Binney his wife the herein mortgaged premises and certain water and water rights, which water and water rights were afterwards represented by and converted into thirty shares of the Glendora Consolidated Mutual Irrigating Company stocks of a value of three thousand ($3,000.00(5) dollars, and two shares of Cienega Springs stock with a value of two hundred ($200.00(5) dollars, and at the same time and place the said purchasers gave back a purchase money mortgage to said Flora H. and E. O. Kennard covering the same premises in question and the said thirty shares of Glendora Consolidated Mutual Water Company stocks and the two shares of Cienega Springs stock.”

A copy of the mortgage was annexed to the complaint as an exhibit and the mortgaged property was described therein as follows: “The south 10 acres of the east one-half of the southeast quarter of the southeast quarter of section 30, township 1 north, range 9 west, S. B. M., including all buildings and improvements thereon or that may be erected thereon; together with all and singular the tenements, hereditaments and appurtenances, water and water rights, pipes, flumes, and ditches thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.”

The court in the decree of foreclosure found the amount due on the note and adjudged the same to be a valid lien upon the ten acres of land aJbove described, and upon “Thirty shares of Glendora Consolidated Mutual Irrigation

[734]

Kennard v. Binney

AI Brief

CURTIS, J.

More from California Court of Appeal

Related research

AI Brief