Cook v. De la Guerra

California Supreme Court Jul 1, 1864Published

Before: Rhodes

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Holding. The court affirmed the foreclosure decree, holding that a demurrer cannot introduce new facts to challenge parties, that a new trial requires a showing of a meritorious defense, and that a mortgage foreclosure by heirs does not affect the prior rights of an estate's creditors or legatees.

Issues

Whether a demurrer may introduce new facts to challenge the sufficiency of parties.
Whether a new trial should be granted based on surprise when no meritorious defense is disclosed.
Whether the foreclosure of a mortgage executed by heirs affects the rights of an unsettled estate's creditors or legatees.
Whether a judgment may be reversed for lack of findings absent an exception in the court below.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”

“the foreclosure of a mortgage executed by the heirs or devisees of the deceased could not divest or injuriously affect the prior rights of the creditors or legatees of said deceased.”

Synopsis

Demurrer—Office of. — A statement of facts in a demurrer is not admissible. The only office of a demurrer is to raise issues of law upon the facts stated in the pleading demurred to.

Mortgage—Defense Against.—It is no defense, in an action to foreclose a mortgage upon real estate, that it was executed by the heirs after the death of their father, from whom they inherited the property, and that the deceased left debts which remain unpaid, and that the estate is being administered upon in the Probate Court.

New Trial on Ground of Surprise.—A new trial will not be granted on a showing, alone, of surprise, which ordinary prudence could not have guarded against, but it must also be made to appear that the moving party has a valid defense to some material part of the plaintiff's cause of action, and that on the new trial the result may be different from that on the first trial.

Mortgage by Heirs—Foreclosure of.—The foreclosure of a mortgage, executed by the heirs of the deceased, upon property inherited from him, does not divest or injuriously affect the rights of the creditors of the deceased ¡ but the purchaser at the foreclosure sale will hold the property, subject to the proceedings in the Probate Court, for the settlement of the estate of the deceased.

Finding op Facts—Exception to. — A judgment, rendered in an action tried by the Court, without a jury, after the first day of July, 1861, will not be reversed for want of a finding of the facts, unless exceptions be made in the Court below to the want of a finding.

By the Court, Rhodes, J. The complaint in this case is in the usual form of complaints for the foreclosure of mortgages of real estate. All of the defendants except Orena demurred to the complaint on the grounds that there is a defect of the parties defendants, and that the complaint does not state facts sufficient to constitute a cause of action.

[239]It does not appear upon the face of the complaint that there is a. defect of parties, but the defendants, in order to make the defect apparent, allege as facts that the mortgaged premises are a portion of the estate of José de la Guerra y Noriega, and that the estate is unsettled, and that for that reason the creditors, claimants, and legatees of the estate are necessary parties to the action.

This mode of pleading is inadmissible under airy system; for' it is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.

The second ground is not well taken, for the complaint does state all the facts that are necessary in a complaint to foreclose a mortgage.

. The defendant Orena filed a separate answer, and Pablo, Francisco, Miguel, and Antonia Ma. de la Guerra, filed a joint answer, in which they set up substantially the same defense, which is that the mortgaged premises belong to the estate of José de la Guerra y Noriega, deceased, which remains .in the Probate Court unsettled, and that the creditors and legatees of said deceased are unpaid, and that Oreffa, on the 16th of October, 1861, (which was subsequent to the mortgage,) purchased of the other defendants, who are the sons of said deceased, all their right, title, and interest in and to the estate of said deceased; but they do not deny the execution or delivery of the promissory notes by the De-la Guerras to the plaintiff, nor that the amount alleged in the complaint is due from them to the plaintiff, nor that they executed and delivered the mortgage to secure the .payment of the notes. Upon the hearing, the Court rendered a decree of foreclosure and sale of the mortgaged premises, and a personal decree against the De la Guerras for the deficiency that might remain after application of the proceeds of sale to the payment of the mortgage, debt, and costs.

On the day following the entry of the decree, all the defendants except Orena moved for a new trial on the ground of surprise. The motion was heard upon the affidavits of the attorneys of the parties, and was overruled. Pablo de la Guerra

Cook v. De la Guerra

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