Heyman v. Lowell

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to foreclose two mortgages. It was commenced on the fifteenth day of September, 1856, against the defendants, Lowell and wife, and a decree of foreclosure entered on the same day, under which the mortgaged premises were sold and purchased by the plaintiff. On the twenty-second day of March, 1862, he applied to the Court, upon affidavit, for leave to file a supplementary complaint, making several new parties of persons who had purchased a portion of the mortgaged premises of the mortgagors after the date of the mortgages, and prior to the commencement of the action. The Court granted leave to file the supplemental complaint, and it was filed accordingly, and the new parties subsequently moved to strike it from the files, which was denied, and one of them then filed a demurrer, on various grounds, one of which is the Statute of Limitations. The Court sustained the demurrer, and rendered a final judgment dismissing the supplemental complaint, from which the plaintiff appeals.

[108]The plaintiff gives no reason or excuse why the vendees of the mortgagor were not made parties at the commencement of the action, or for the delay in filing the supplemental complaint. In the case of Goodenow v. Ewer (16 Cal. 470), this Court said: “ Courts of Equity are ever ready to grant relief from sales made upon their decrees, where there has been irregularity in their proceedings rendering the title defective, as well when the purchaser or parties interested have been misled by a mistake of law as to the operation of the decree, as when they have been mislead by a mistake of fact as to' the condition of the property or the estate sold, provided application be made within a reasonable time, and the relief sought will not operate to the prejudice of the just rights of others.” The “reasonable time” for applying to the Court in such cases is at least within the time fixed by the Statute of Limitations for the commencement of actions of a like character —that is, for the foreclosure of the mortgage, after the judgment of foreclosure has been entered. Whether a less period ought not to be fixed in such cases is not necessary to determine; for in this case, more than five years elapsed after the rendition of the judgment and the sale of the property, before the application was made to file the supplemental complaint. This cannot with propriety be considered a “ reasonable time,” under the rule established in Goodenow v. Ewer.