Wardlow v. Middleton

SHAW, J.

This is an action to foreclose a mortgage against Martha T. Middleton, as the mortgagor, and J. W. and Carrie V. Tucker, as subsequent encumbrancers.

The complaint, as against the Tuckers, made the usual allegation that they had or claimed some interest in or claim to the mortgaged premises, but that the same was subsequent

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and subject to the plaintiff’s mortgage. The defendant Middleton made default. The other defendants, appellants here, filed a general demurrer to the complaint, which demurrer being overruled, they filed an answer denying, for want of information and belief, the allegation of non-payment of the mortgage debt, but not denying the aforesaid allegation in regard to their own claims and interests. There was a trial by the court, findings in favor of the plaintiff and judgment of foreclosure. The appeal is from the judgment, the evidence being presented by bill of exceptions.

The demurrer to the complaint was properly overruled. The allegation above mentioned has been held sufficient in an action to foreclose liens in numerous decisions. (Poett v.

Stearns,

28 Cal. 228;

Himmelman

v.

Spanagel,

39 Cal. 391;

Anthony

v.

Nye,

30 Cal. 401;

Harmon

v.

Ashmead,

68 Cal. 323, [9 Pac. 183];

Sichler

v.

Look,

93 Cal. 608, [29 Pac. 220].) It was sufficient to show that the said defendants were proper parties to the suit. No other objection is made to the sufficiency of the complaint.