Joost v. Dore

RICHARDS, J.

This action was brought for the purpose of obtaining a judgment setting aside and declaring void a foreclosure sale of the property involved in the action, and restoring the plaintiff to his position and rights as they existed prior to the judgment upon which such foreclosure sale was had.

The facts of the case disclosed by the record are as follows: On December 30, 1893, one Henry M. G. Dahler was the holder of the record title to certain property in San Francisco embracing a number of lots and covering about five acres, of which property he was however in fact the owner of only an undivided one-third, the remaining two-thirds thereof being held by him in trust, one-third for Marten B. Joost,

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the plaintiff herein, and the other one-third in trust for Maurice Dore, Sr. While the title and ownership of this property stood in this way Dahler mortgaged the whole property to the German Savings & Loan Society, and subsequently thereto conveyed to Maurice Dore, Sr., his undivided one-third interest in the property excepting a certain lot known as the Spring lot. Thereafter Maurice Dore, Sr., died intestate, leaving as his sole heirs his daughters Helen and Charlotte B. Dore, and his grandson Maurice Dore, Jr. His said two daughters were appointed administratrices of his estate, and are still acting as such. After the death of Maurice Dore, Sr., his said daughters and one Ada Johnson, the mother of Maurice Dore, Jr., purchased said mortgage, and procured an assignment of the same to be made to one James K. Wilson, who acted as their agent in the premises thereafter. On September 8, 1896, Wilson brought suit to foreclose this mortgage, making as the defendants in said action the said Dahler, Marten B. Joost, the plaintiff herein, and also one Behrend Joost. Dahler appeared, and filed a cross-complaint against the Misses Dore as the administratrices of their father’s estate, upon which issue was joined. On September 21, 1901, a judgment of foreclosure was entered in said action, and on October 18, 1901, the property was sold at foreclosure sale, and was bought in by the Misses Dore for the amount of the mortgage debt, no money passing, but the purchase price being credited on the judgment by agreement between Wilson and the purchasers. A one-third interest in the certificate of sale was subsequently assigned by the Misses Dore to said Ada Johnson, and on April 22, 1903, a commissioner’s deed was issued to these three, who have since been the apparent owners of record and in possession of the property.