Hibernia Sav. Etc. Society v. Robinson

SLOSS, J.

The Hibernia Savings and Loan Society commenced an action to foreclose a mortgage on several parcels of real estate in the city and county of San Francisco. Some of the defendants named in the complaint defaulted, and a decree of foreclosure was made and entered in regular form as against them. The plaintiff became the purchaser at the foreclosure sale, and, no redemption having been made within the statutory time, received the commissioner’s deed on October 30, 1902. On May 13, 1903, the plaintiff procured a writ of assistance and delivered it to the sheriff of the city and county for execution. This writ directed the sheriff to put the plaintiff in possession of one of the parcels of land included in the foreclosure proceeding. On May 14, 1903, Clarence W. Purrington, as administrator of the estate of Caroline A. Robinson, deceased, filed in the superior court an affidavit alleging that Caroline A. Robinson at the time of her death was the owner and in possession of the piece of land described in the writ of assistance; that affiant had on the eighth day of October, 1901, been duly appointed her administrator, and ever since had been, and still was, in the actual possession of the property in question. Upon this affidavit

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the court below made an order directing the plaintiff to appear and show cause why an order should not be made perpetually restraining the execution of the writ of assistance and restraining the sheriff from in any manner interfering with the possession of Clarence W. Purrington as such administrator. Upon the hearing of the order affidavits and counter-affidavits were read and oral testimony was taken. Thereafter, on the twentieth day of November, 1903, the court made an order discharging the order to show cause. Purrington, as administrator, now appeals from the order of November 20th.

The mortgage had been executed by Charles H. and Thomas B. Robinson. Thomas B. had died before the commencement of the action, and his executors, together with Charles H., were made defendants, and judgment was taken against them. .The estate of Caroline A. Robinson was not made a party to the foreclosure proceedings, and her interest, if she had any, was not affected by the foreclosure decree. Nor could her claim of title be adjudicated in a proceeding like the one under review. “The courts will not undertake to settle the conflicting legal or equitable rights of persons not parties to a foreclosure suit, upon an application for a writ of assistance; to adjudicate such rights upon affidavits or on a motion.”