Abadie v. Lobero

By the Court, Sawyer, C. J.: On the 31st of October, 1859, Mariano Olivera executed a note in favor of John Temple for eight hundred dollars, and to secure it at the same time jointly with his wife, executed a mortgage on the “ Rancho La Gaviota.” Afterward, on the 20th of March, 1861, said Olivera and wife entered into a contract with Domingo, Juan, and Marcelina Abadie, under the firm name of Domingo Abadie & Brothers, to pasture for said Abadie & Brothers, on said rancho, for two years, a large number of cattle, and to secure the performance of said contract to pasture on the part of Olivera and wife, they also executed a mortgage on said “Rancho La Gaviota.” In the month of April, 1864, William Abadie recovered a judgment against said Abadie & Brothers, for twenty-six thousand dollars, and, under an execution issued on said judgment, had sold, and himself purchased in for two hundred dollars, the cattle of the defendants, which were at the time being pastured on said rancho under said contract, but there was no seizure or sale under said execution of said contract to pasture. The cattle, only, were sold. On the 10th of August, 1865, Temple commenced suit to foreclose his mortgage against Olivera and wife, making William Abadie a party, as claiming some interest in the premises. Servide was had on Olivera and wife, but not on Abadie, nor did he appear. Ho notice of lis pendens was filed. On the 6th of Hovember, 1865, the default of Olivera and wife was entered. On the 22d of December, and before entry of judgment, Olivera and wife by deed, duly acknowledged and recorded, conveyed the mortgaged premises, for a valuable consideration, to defendant Clara Cota Lobero, without notice of the pendency of the foreclosure suit. On the 25th [395]of December, 1865, a final judgment, directing a sale of the mortgaged premises, was entered in said suit of Temple, and on the 6th of February, 1866, the mortgaged premises were sold under the judgment to Temple, the plaintiff in the suit. On the 30th of April, 1866, Clara Cota and her husband, José Lobero, by deed duly recorded, conveyed said premises for the full cash value to defendant Dibblee. On the 16th of February, 1866, the present plaintiff, William Abadie, claiming to redeem as owner of the mortgage given to Abadie & Brothers, to secure the contract for pasturage, paid to Temple the full amount of his judgment, which Temple accepted, and thereupon gave to said Abadie a notice in writing, addressed to the Sheriff, stating that William Abadie had redeemed the premises sold, by paying the full amount required by law for such redemption. Afterward the Sheriff executed a deed of conveyance to said William Abadie in pursuance of the sale and direction of the judgment. On the 30th of June, 1866, Temple died. Abadie applied for a writ of assistance to obtain possession, which was successfully resisted by defendant Dibblee. On the 26th of July, 1866, an order in the case of Temple v. Olivera et al. was entered, reciting the death of Temple—that Temple in his lifetime had transferred all his interest in the action to William Abadie, and that it was necessary to open the judgment and make Lobero and wife and Dibblee parties, in order to determine their rights, and directing the said judgment to be opened, that the said William Abadie be substituted as plaintiff, and that Lobero and wife and Dibblee be made defendants. Thereupon, said Abadie, as plaintiff, filed a supplemental complaint against Lobero and wife and Dibblee, in which he alleged, among other things, the proceedings herein stated, and that the conveyance to the wife of Lobero and to Dibblee were fraudulent, and prayed for a writ of assistance, and, if that could not be had, for a judgment foreclosing the mortgage against all the parties, for sale of the premises, and application of proceeds to payment of the judgment, and a personal judgment against Olivera for any