Hersom v. Hersom

CONREY, P. J.

This action was commenced by the plaintiff against Milton Hersom and Inez E. Hersom. Prior to the trial of the action, Inez E. Hersom died, and Benjamin F. Hersom, executor of her last will and testament, was substituted in her place as defendant.

Carrie Hersom and Milton Hersom, at all of the times mentioned in the complaint, were husband and wife. They owned as community property several parcels of land. They executed three several notes and mortgages to different mortgagees, each of them being a lien upon a part of this real property. In May, 1919, Inez E. Hersom, who was the mother of defendant Milton Hersom, purchased these mortgages and caused them to be assigned to herself. On the second day of August, 1919, she commenced three actions, each action being for the foreclosure of one of said mortgages. In each action summons was served upon Carrie Hersom, defendant therein, on the thirteenth day of September, 1919, and her default entered on the twenty-ninth of the same month. The decrees of foreclosure were entered on the twenty-eighth day of October, 1919, and sales under said decrees were made in January, 1920. In each instance Inez E. Hersom became the purchaser of the property, and the sheriff’s deeds were duly issued to the purchaser in January, 1921, after the expiration of the several periods of redemption.

The plaintiff herein and the defendant Milton Hersom had separated in July, 1918, and the husband had commenced an action for divorce. After that time they never lived together. In that divorce action relief was denied to both parties. A second divorce action was commenced by the husband on March 16, 1920. In that action an interlocutory decree in favor of the plaintiff was entered on the thirtieth day of December, 1920, which decree, on appeal, was affirmed.

(Hersom

v.

Hersom,

60 Cal. App. 383 [212 Pac. 717].)

This present action was brought by Carrie Hersom to obtain a decree setting aside the said several decrees of foreclosure and the sales and conveyances made thereunder,

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and to establish and declare the plaintiff’s alleged rights in said several parcels of real property. In her complaint she did. not attack the validity of the mortgages. She alleged that the mortgages were purchased by Inez E. Hersom with money furnished to her by defendant Milton Hersom; that the defendant Milton Hersom allowed the interest thereon to become delinquent for the purpose of instituting foreclosure proceedings thereon; that said defendants connived and arranged for said proceedings for the purpose of wrongfully and fraudulently foreclosing.the interest of said Carrie Hersom in said property, and that defendant Milton Hersom used the name of his mother for the purpose of defrauding said Carrie Hersom by means of said proceedings. Appellant further alleged that at the time of the commencement of said foreclosure actions, she was in a weakened physical condition and was without funds to contest the same, and was unable to file an answer thereto. Upon issues raised by the answer of the defendants, this action was tried and judgment was entered in favor of the defendants. From that judgment the plaintiff appeals.