Rowley v. Davis

SHAW, J.

The two eases above entitled present the same questions upon facts identical in effect. A decision in one will determine both. In each case the appeals are from the judgment and from an order denying a new trial. We will state in detail the facts involved in case No. 2159.

Rowley’s complaint stated a cause of action to foreclose a mortgage on a tract of land in Yolo County, executed by J. 0. Davis and Rozina P. Davis, his wife, on March 9, 1910, to secure their note for ten thousand dollars. It contained the usual allegations and, with respect to all the defendants except the said mortgagors, it merely alleged that they had, or claimed to have, some interest or claim on the premises and that said interests or claims were subsequent to and subject to the lien of plaintiff's mortgage. The mortgage provided for the payment of reasonable fees for plaintiff’s attorneys and the complaint alleged that seven hundred and fifty dollars was such reasonable fee.

The defendants, J. 0. Davis, Rozina P. Davis, and E. F. Davis, appellants, herein, filed an answer admitting all the allegations of the complaint, except as to the attorney’s fee, and alleged that one hundred dollars was a sufficient fee. Defendant Nichols, filed an affirmative answer and cross-complaint, claiming therein certain attachment liens on the land under writs issued in actions begun in Alameda County for debts of Davis and wife, subject to plaintiff’s mortgage, and alleged that certain deeds whereby the mortgaged land had been transferred from J. 0. Davis and wife, through mesne conveyances, to E. F. Davis, prior to the levies of the attachments, were made with intent to defraud Nichols and

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other creditors of Davis and wife and asking that said deeds be set aside and the land subjected to his attachments. The First National Bank of Berkeley, by leave of court, filed a complaint in intervention, alleging a judgment lien on the land, subordinate to plaintiff’s mortgage, and likewise attacking the aforesaid transfers to E. F. Davis, and asking that they be adjudged fraudulent and void. The plaintiff answered the pleadings of the said defendants, denying the allegations of each of them. The appealing defendants demurred to the pleadings of said eodefendants and intervener, but they have not filed answers thereto and no ruling has been made on the demurrers. In this condition of the pleadings the court, on motion of the plaintiff and over the objection of the appellants, proceeded to try the issues arising upon the plaintiff’s complaint and the answers thereto, without at the same time trying the issues upon the cross-complaint aforesaid, its announced intention being to reserve said controversies between the defendants for future determination in the cause. It thereupon made findings that five hundred dollars was a reasonable fee for the plaintiff’s attorneys, which finding is not attacked, and declaring that no determination was made of the issues upon the other pleadings aforesaid. A decree foreclosing the plaintiff’s mortgage and for the sale of the land was thereupon made, expressly saving the rights of the defendants and the intervener, or either of them, to any surplus remaining of the proceeds after satisfying the plaintiff’s debt and costs, and providing that such surplus, if any, should be paid into court to be distributed to the respective defendants as their interests might subsequently be made to appear and as the court should subsequently determine.