Benson v. Bunting

McFARLAND, J.—

This is an action to redeem certain real property from a sale made to defendant on the foreclosure of a mortgage. Judgment went for plaintiffs, and defendant appeals from the judgment and from an order denying his motion for a new trial.

The ease was here once before', and is reported in

Benson

v.

Bunting,

127 Cal. 532 ;

1

and as the nature of the action is quite fully stated in the opinion rendered on the former appeal, there is no necessity for a general statement of it here.

[464]

That appeal was from a judgment in favor of defendant following the sustaining of a demurrer to the complaint, and the judgment was reversed—the court holding that the complaint was sufficient. It was there decided that, on account of certain alleged acts and conduct of the parties, the plaintiffs were entitled to redeem, notwithstanding the fact that the statutory period of redemption had expired before the offer to redeem had been made; and, therefore, their right to redeem upon proof of the material averments of the complaint is the settled law of the case, and need not be here discussed.

After the

remittitur

went down the ease was tried by the court without a jury, and certain findings were made. Some of the material findings are attacked as not supported by the evidence; but as to those points it is enough to say that in our opinion there was sufficient evidence to warrant each of the findings attacked.

It is contended, also, that the findings do not support the judgment; but this contention is not maintainable. There is only one point on this branch of the case which we deem necessary to specially notice. It is averred in the complaint that the plaintiffs offered to redeem within a certain time, and the averment is denied in the answer; and it is contended that the findings are deficient because there is no specific finding that they did so offer to redeem. We think, however, that while the finding might have been more specific, the subject is sufficiently covered by another finding. It is averred in the complaint that on February 1, 1898, appellant procured a deed from the commissioner appointed to sell the property, and that appellant “now claims under said deed, and ever since the making thereof has claimed, to be the owner in fee of said premises