De Leon v. Higuera

Although it does not appear from the record on appeal that a demurrer to the complaint was formally disposed of, yet, if it does appear in the statement that one of the errors relied on is “ the ruling of the Court on the demurrer, and that the same should have been sustained ;” and if the appellant went to trial without insisting on a disposition of the demurrer, he cannot object in the Supreme Court that the demurrer was not formally disposed of.

A subsequent purchaser of land mortgaged is a proper if not necessary party to a foreclosure suit; and if the complaint be faulty in praying to hold him as trustee of the mortgagor, on account of fraud in the purchase, such defect cannot be reached by demurrer.

Query, whether in a foreclosure suit in the Seventh District as to land situate in Contra Costa county, a party can appear and contest the case in San Francisco, before the Judge of the Seventh District, under a stipulation, and without exception as to the place of trial, and afterward assign that fact as error.

Bill avers, in substance, plaintiff to be holder of several notes and mortgages executed to him by defendants, H. and wife, and that defendant, O’D., proposed to plaintiff to buy said notes and mortgages for a certain sum, which plaintiff agreed to take; that O’D. desired, before closing the purchase, to see H. and wife, and learn whether they could be induced or compelled to pay the notes, asked plaintiff for the notes and mortgages to show H. and wife, and that plaintiff delivered them to him, relying on his honesty; that O’D. saw H. and wife, who were illiterate, and by representing himself as the owner of the notes, etc., which he exhibited, by threatening to sue, etc., induced H. and wife to give him an absolute deed in fee simple of the mortgaged premises for one hundred dollars, the premises being worth many thousands of dollars ; that O’D. then returned the notes, etc., declined purchasing of plaintiff, and concealed the fact of having a deed from H. and wife; that all this was a fraud on plaintiff; that O'D., in taking said deed, acted as agent and trustee of plaintiff, and for his benefit, and should have taken the deed in his name; that in equity said O’D. ought to declare such trust, and execute a deed of the property to plaintiff; that, on account of a defect in the record of one of the mortgages, it does not impart notice, etc., and that if O’D. should sell the property, as ho is trying to do, to an innocent purchaser, such sale would injure plaintiff irreparably. Other parties are made defendants, as claiming some • interest subsequent to plaintiff. Complaint prays for injunction against O’D., that said trust be declared, that he execute a deed to plaintiff, that H.’s wife execute to plaintiff such further conveyance and assurance and release of equity of redemption as may be just in satisfaction of said mortgages, and that all defendants be barred, foreclosed, etc.; or that the deed by H. and wife to O’D. be declared void and canceled, and he be foreclosed of all equity of redemption thereunder; and if such deed be canceled, that then plaintiff have judgment against H. and wife on said notes, that all the defendants be barred, etc., and premises sold to pay the judgment, etc. O’D. demurs that inconsistent causes of action are united. Held, that the demurrer is not well taken, that the allegations of the complaint make out a homogeneous case as against all the defendants, to wit: a right to enforce the mortgages, and to a decree of foreclosure binding subsequent claimants, of whom O’D., by his purchase, is one, with notice of the mortgages.