Greenebaum v. Davis

HAYNES, C.

This appeal is from the judgment upon the judgment-roll.

Defendant John Davis was the owner of an undivided interest in the rancho San Pablo. In January, 1885, one Lynch obtained a judgment against Davis for two thousand one hundred and eighty-tour dollars and four cents, and nineteen dollars costs, and in February of the same year the undivided interest of Davis in said rancho was sold to one Waterman for the sum of two thousand three hundred dollars and forty-two cents, who received a sheriff’s deed therefor. Said undivided interest so sold was, however, subject to a mortgage for the sum of seventeen -thousand nine hundred and sixty dollars and twenty-five cents held by Budolph Hoehkofier, the trustee in bankruptcy, for the creditors of D. Ghirardelli.

At the time said deed was executed to Waterman there was a suit pending in the superior court of the city and county of San Francisco-, brought by Joseph Emerie against Juan B. Alvarado et al., the object of which was to partition said rancho;

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and said Davis, Hochkofler, and Waterman, who were made defendants to said action, stipulated therein that all such lands as might, upon final partition, be allotted to Davis in satisfaction of his undivided interest in the ranch, should be decreed to him as owner, that the mortgage of Hochkofler should be a lien upon the lands so set apart to Davis for the amount of his mortgage, with interest, and that Waterman should have a lien, subject to said mortgage, for two thousand three hundred dollars and forty-two cents and interest, and this stipulation was confirmed by an interlocutory decree entered in said cause, the claim of said Waterman to become due upon the entry of the final decree, which was March 3, 1894, and which confirmed the interlocutory decree.

Hochkofler, in 1888, commenced an action to foreclose his mortgage and made Waterman a defendant, but this suit was not pressed until after the final decree in the partition case, when John Lloyd, who became trustee after the death of Hochkofier, amended the complaint and prosecuted the foreclosure suit to a final decree. Waterman did not answer or assert bis lien in that action, but made default. The officer making the sale under Lloyd’s decree was directed to pay into court any surplus money that might remain after paying the amount due to Lloyd.