Fuller & Todd Realty Co. v. Superior Court

THE COURT.

Application for a writ of

certiorari

to review a judgment of foreclosure of mortgage in so far as it is claimed to affect petitioner, a junior mortgagee. The petitioner was originally made a party defendant, as one claiming some interest as purchaser or mortgagee, which interest was alleged to be subsequent to and subject to the lien of the mortgage sought to be foreclosed. Petitioner alleges that it was never served with summons, and never had notice of the action until the time for appeal from the judgment had expired.

The judgment given recites that the action was dismissed as to said petitioner, with the result that if its mortgage was recorded, as is alleged, prior to the recording on April 7, 1914, of the notice of

lis pendens

in the foreclosure action, the situation is precisely as it would have been if petitioner had never been a party to the action, and its interest as a mortgagee is in no way affected by the judgment of foreclosure, or the sale thereunder. The judgment given, properly construed, does not purport to bar anyone claiming under defendant Chase, whose interest in the premises was acquired prior to the filing for record of the notice of

lis pendens

on April 7, 1914, and was properly shown on the public records.

The application for a writ is denied.