Aldrich v. Stephens

By the Court, Wallace, C. J.: Intermediate the execution of the mortgage by Stephens and the commencement of proceedings for its foreclosure, Mrs. Karnes became the owner of the mortgaged premises by conveyance from the mortgagor. She was named as a party defendant in the complaint in foreclosure; but before the entry of the decree, she departed this life without having appeared or been served with process in the action. A decree was subsequently entered against the mortgagor only. The present action is brought by the plaintiff in the former action against Stephens, the mortgagor, and also against the personal representative of Mrs. Karnes, for the purpose of setting aside the former decree, and obtaining one foreclosing her interest in the mortgaged premises. A demurrer to the complaint, filed by the representative of Mrs. Karnes, was overruled, and the plaintiff obtained the decree he sought.

It is manifest, however, that, independent of the question of practice made at the argument and presently to be noticed, the complaint is insufficient to support the decree. There was certainly no reason for the second decree unless the first one was shown to be, in some respect, ineffectual to afford the relief claimed by the plaintiff. In preparing the complaint, it seems to have been assumed by the plaintiff’s attorney that because Stephens had, subsequently to the execution of the mortgage, conveyed the mortgaged premises to Mrs. Karnes, and the latter, or her personal representative, after her decease, had not been impleaded, the foreclosure was necessarily ineffectual as against Mrs. Karnes or her estate'. . There is, accordingly, no averment to be found in the complaint to the effect that the conveyance from Stephens to Mrs. Karnes appeared on record in the proper office at the time of the commencement of the former action. If it did not, and was then a mere unrecorded con[679]veyance, the proceedings in the former action are as conclusive against Mrs. Karnes or her estate, as if she, in her lifetime, or her personal representative, after her decease, had been made a party (Code Civil Pr. Sec. 726), and there would be no necessity for another decree.

But if this defect were obviated, we are of opinion that relief should have been sought by motion in the original action, and not by instituting a new action. (Goodenow v. Ewer, 16 Cal. R. 461.)

Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.

Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.