White v. Costigan

HARRISON, J.

Action to quiet title to certain land in the county of Mendocino. Judgment was rendered in favor of the defendant, from which the plaintiff has appealed, upon the judgment roll, without any bill of exceptions. The following facts appear from the findings of the court: —

In an action for divorce pending in the superior court, wherein George E. White was plaintiff and the plaintiff herein was defendant, a receiver was appointed, “ to take the custody and charge of and care for the property of said George E. White, for the purpose of maintaining and preserving the right of said Frankie White, and to enable the court to enforce any judgment finally rendered in said action and thereafter, while said action was pending, the court, upon application of the said George E. White, granted him permission to mortgage certain of his real estate to the extent of six thousand dollars, in pursuance of which, on March 3, 1894, he executed a mort

[35]

gage to one Fairbanks, which included the lands described in the complaint herein. Under a similar order of the court he executed a mortgage to Costigan, the defendant herein, upon certain of his lands, other than those included in the complaint herein, to secure the sum of two thousand five hundred dollars. January 15, 1895, Fairbanks commenced an action for the foreclosure of his mortgage, making Costigan and the aforesaid receiver parties defendant thereto. Costigan appeared in said action and filed a cross-complaint, asking for the foreclosure of his mortgage, and that the lands described therein be sold, under the same decree as that of Fairbanks. The receiver also appeared and answered the complaint of plaintiff and the cross-complaint of Costigan, and set up, by way of cross-complaint, all the rights the said Frankie White had or claimed to have in said land. After the commencement of the action, Walter H. Linforth became, by assignment, the owner of the Fairbanks mortgage, and was substituted as plaintiff therein in the place of Fairbanks. Upon the trial of the cause, the superior court rendered its judgment for the foreclosure of the two mortgages, and directed a sale of the property described therein, and the application of the proceeds of said sale. Under an order of sale issued upon this judgment, the sheriff of Mendocino County sold the said lands, March 6, 1897, in several parcels, to W. H. Linforth, and gave to him. a certificate of said sale, and caused a duplicate thereof to be recorded in the office of the county recorder. The lands described in the complaint herein were sold for five hundred dollars. March 26,1897, the sheriff returned the order of sale, setting forth that the judgment in favor of Fairbanks had been fully satisfied, and that upon the judgment in favor of Costigan there was a deficiency of $3,937.34. Judgment was thereupon docketed against George E. White, in favor of Costigan, for this amount.