Ludwig v. Murphy

SHAW, J.

Appeal from a judgment for the plaintiff. The appeal is on the judgment-roll, and there is no bill of exceptions. The case briefly stated is this: The. plaintiff is the mortgagee, and the defendant Mrs. E. M. Murphy is the mortgagor in a mortgage of date March 13, 1897, given to secure a promissory note of even date for the sum of $1,378, payable April 25, 1899. The mortgage was intended by the parties to include an adjoining strip of land, which was omitted

[474]

by mistake in the drawing of the instrument. The other defendant is the husband of the mortgagor. The land mortgaged, including the strip alluded to, was the property of Mrs. Murphy, who was then residing on it, and who on June 17, 1898, filed thereon a declaration of homestead,—her husband at that time having notice of the mortgage. A suit to foreclose was commenced by the plaintiff, June 14, 1899, against Mrs. Murphy alone, and resulted, September 19, 1899, in a judgment of foreclosure, and a sale of the mortgaged premises thereunder, July 1, 1901, to the plaintiff. The plaintiff in due course received her deed, and thereupon demanded -of Mrs. Murphy the possession of the premises, which was denied; and thereafter application was made to the court by the plaintiff for a writ of assistance, which was resisted by the defendant Murphy (the husband). The object of the present suit—to which both spouses are made parties—is to correct the mistake in the description of the premises mortgaged, and, in effect, to foreclose the mortgage. The above facts are alleged in the complaint, and, with exception of the allegations as to the mistake in the description of the mortgaged premises, are not denied by the answer. As to the alleged mistake, the findings are adverse to the defendant, who makes no point on this branch of the ease; which, therefore, need not be further considered. The facts of the ease, therefore, so far as stated, are the same as those involved in

Brackett

v.

Banegas,

116 Cal. 278;

1

and it is claimed by the respondent that the decision in that ease is in point in her favor.