Hentig v. Johnson

SHAW, J.

Plaintiff was the owner of an undivided one-half of a certain lot, the legal title to which stood in the name of Mary Williams, subject to a mortgage held by Prances E. Johnson. Williams refused to transfer to plaintiff his interest in said lot, whereupon he brought suit to compel conveyance thereof. Judgment was rendered in his favor, from which Williams appealed. Pending this appeal, Johnson brought suit to foreclose her mortgage, making plaintiff a party defendant therein. She obtained a decree of foreclosure, under which the lot was, on August 2, 1904, sold for a sum in excess of that required to satisfy her judgment, and which surplus was, in accordance with the decree, paid to Williams, the record owner of said lot. Later, the judgment in favor of plaintiff. requiring Williams to convey to him an undivided one-half interest in the lot, and from which she had appealed, was affirmed. Upon her refusal to pay to him

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any part of the surplus proceeds of the sale of said lot he brought this action against her, making Johnson and others party defendants therein. All of the defendants joined in a demurrer, which was overruled, and thereupon they filed separate answers. Judgment went in favor of all the defendants, except Mary Williams, against whom judgment was rendered in favor of plaintiff for one-half of said surplus money received by her under said decree of foreclosure, together with interest thereon from the date of its receipt. Her appeal is from this judgment.

1. In considering the demurrer interposed it is unnecessary to discuss the objections therein urged to the sufficiency of the complaint, save and except in so far as it forms a basis for recovery against appellant. If the ruling be correct as to her, the fact that it was erroneous as to the other defendants not complaining is immaterial as to appellant.

The complaint contains a mass of surplusage intermingled with a statement of facts, from which it appears that plaintiff was the owner of an undivided one-half of said lot subject to said mortgage; that the title thereto stood of record in the name of said Williams, who wrongfully refused to convey the same to him; that while thus holding the title a suit foreclosing the Johnson mortgage was instituted and the property sold under the decree rendered therein and the surplus arising from such sale, consisting of $759.95, was, on August 2, 1904, in accordance with the directions in said decree, paid to her; that she refused to pay any part thereof to plaintiff; and that she still retains the same. The prayer of the complaint is for general relief. By his complaint, in addition to the above facts, plaintiff undertakes to set up a conspiracy betwéen appellant and her eodefendants, whereby they sought to defraud plaintiff in depriving him of the title to said lot, and upon Which he prays that Johnson and Williams be required to convey to him one-half of said lot. The allegations, however, fall far short of constituting a cause of action under which such relief could be granted, and as inserted in the complaint constitute mere surplusage.