Buckout v. Swift

By the Court, Shafter, J. On the 4th of October, 1861, Francis P. Swift and his wife, for the purpose of securing the payment of a promissory note made and delivered by him to the plaintiff, mortgaged a lot in the City of Sacramento, on which stood a dwelling house occupied by Swift and his family, and in which they continued to live until .the great flood of 1862, when. the house was carried, by the rush of water, into the street a short distance from the mortgaged lot, where it stood when this action was brought. A short time before the commencement of the action, Swift made a contract with the defendant, Lowell, to' sell him the house, and Lowell was about to remove it, when the plaintiff brought this action to foreclose the mortgage and to restrain the removal. It was alleged in the complaint that the house, at the date of the mortgage, was affixed to and formed a part of the realty, and that it was chiefly valuable to be used in connection therewith; and that Lowell bought with full notice of all the facts, and that he was destitute of property. The plaintiff obtained upon his complaint, from the County Judge, an order restraining the defendants from selling, taking away, or injuring the house. The order was thereafter dissolved, and an injunction refused by the District Court, upon the complaint alone.

Thereupon, Lowell answered, and, at the trial of the cause, the Court rendered a judgment against the defendant Swift for the amount due on the note, and a decree for the foreclosure of the mortgage and for the sale of the mortgaged property, excepting the house, and as to that, it was ordered and adjudged that the decree should not affect nor authorize its sale; and the Court dismissed the complaint as to Lowell and gave judgment in his favor. The appeal is from the order dissolving the restraining order and refusing to grant an [435]injunction, and from that part of the decree which dismissed the bill as to the defendant Lowell.

There is a document in the record headed “ Statement on appeal.” Amongst other things, it contains the pleadings in the action, an agreement that certain facts detailed were “ proved,” and a medley of evidence given by the witnesses of the respective parties. On this appeal we can make no reference to the evidence, for the purpose of determining whether the judgment is right or wrong. There was no motion for new trial, nor are there any questions arising upon the admissibility of evidence. There are no findings in the case, and we must therefore intend that all the issues of fact raised by Lowell’s answer were found in his favor; that is to say, we must intend that the Court found that the lot, without the house “ was sufficient security for the debtthat the defendant “purchased the house of Swift and fully paid him therefor,” and that “the defendant is possessed of sufficient means to respond in damages at law.” There are other issues raised by special denials in the answer, but the denials are either of immaterial averments or involve mere conclusions of law. It is charged in the complaint that the house was standing upon the lot when the mortgage was made and recorded in October, 1861. That the house was thereafter, in 1862, floated by the flood from off the land into an adjacent street. That the house was the one which Lowell bought, and that the fact of then-identity was known to Lowell at the time he purchased. All these averments must be taken as true, for none of them are denied. The facts, which by the statement were “proved,” may be laid out of account for they do not bear upon any question which we shall have occasion to discuss.