Citizens' Sav. Bank of San Diego v. Bennett

[749]

OLNEY, J.

—This is an appeal from a judgment for the plaintiff declaring it to be the owner of two certain dwelling-houses, enjoining the defendants from affixing the houses to two certain lots on to which they had just been moved when the action was brought, and giving the plaintiff possession of them. The appeal is on the judgment-roll alone. • The real parties in interest are the plaintiff and the defendant, Carrie E. Bennett. :

The findings show that Mrs. Bennett and her husband were formerly the owners of certain unimproved lots designated by number in a block in an outside subdivision of the city of San Diego. "While such owners, Mrs. Bennett and her husband mortgaged the property to the' plaintiff to' sequre a loan of two thousand dollars made by the plaintiff to the Bennetts upon the understanding that the money would be used in building dwellings upon the property. The subdivision had been platted and the lines of its lots and blocks staked on the ground, and at the time of the giving of the mortgage the president of the plaintiff and the Bennetts went to the subdivision and definitely located the1 lots of the Bennetts as so platted and staked. Upon these' lots the Bennetts then built four houses, two of which are those whose ownership is now in question. -

Subsequent to the execution of the mortgage, what is termed a partition suit was brought to determine the ■boundaries of the lots and blocks in the subdivision. All the owners of lots in the subdivision were made parties and; the plaintiff here and the Bennetts were among the parties plaintiff. In the partition suit a survey was made of the subdivision with the consent of the parties whereby the boundary lines of the various lots were located differently from the boundaries previously platted and staked and according to which the Bennetts had purchased and then mortgaged to the plaintiff. On July 12, 1915, a decree, ■ agreeable to all the parties, was entered in the partition suit, whereby the boundaries of the various lots were fixed in accordance with the survey made in the suit. By this decree the Bennetts were declared to be the owners of the lots mortgaged subject to the plaintiff’s mortgage, but the lots so owned and mortgaged were defined and bounded according to the partition survey and not as originally platted and staked. The result was that two of the houses built by