Murray v. Etchepare

[287]

CHIPMAN, C.

— Foreclosure. Plaintiff had judgment on the verified pleadings, from which defendant Etchepare alone appeals. The complaint is in the ordinary form, for foreclosure of a certain mortgage executed by defendant Etchepare, on February 12,1895, to secure the payment of a certain promissory note made by him to plaintiff on that date. Mrs. Leonis and Wilkerson were made parties defendant, as claiming some interest in the mortgaged property.

It is not necessary to consider whether the facts in Mrs. Leonis’s separate answer are well pleaded and constitute a defense to the action, for the reason that she does not appeal. Etchepare, in his separate answer, alleges ownership of the land, and does not deny the execution of the note and mortgage. His defense is, that in an action wherein Mrs. Leonis is plaintiff and he is defendant, commenced before the foreclosure proceedings were begun, in the superior court of Los Angeles County (the same court in which the foreclosure action was commenced), the court made an order appointing a receiver of all the property • involved in this action, and said property went into possession of said receiver, who was then the acting and qualified receiver and is now acting as such in said action; that the court, in the said action (Leonis

v.

Etcher pare), before the commencement of this present action, “duly made an order requiring and authorizing the said receiver to pay off and discharge plaintiff’s mortgage, and said order has not been rescinded or set aside,” all of which, it is alleged, was well known to plaintiff when she brought this action; that “plaintiff did not procure any order from the superior court authorizing said plaintiff to commence an action against the receiver, who is made a party defendant herein.” It is prayed that the court require the receiver to pay off the mortgage, and “ that, for that purpose, the said receiver be authorized to borrow the amount,” and that plaintiff’s action be dismissed. The judgment recites that the receiver, defendant Wilkerson, disclaimed any interest in the mortgaged premises, and averred that his interest was such only as was given him by the order of his appointment as receiver, and the judgment provided “ that the judgment and decree herein shall in no wise affect his rights and interests as such receiver.” The receiver does not appeal.