Mabury v. Ruiz

Thornton, J.: In this action, which was brought to foreclose a mortgage by one claiming to be the assignee of the note and mortgage sued on, the sole mortgagor, José Dolores Ruiz, together with Dolores S. de Abila and D. B. Hoffman, were made defend[13]ants. The note and mortgage above mentioned were executed on the 27th of June, 1877. The defendants, failing to answer, were regularly defaulted. One Salvadora Ruiz, by leave of the Court, filed a complaint in intervention, in which she alleged that on the 31st of December, 1872, and prior thereto, she was, and thereafter continued, the wife of the mortgagor, and that when the said mortgage was executed, and ever since the day last named, she and her husband had resided on the mortgaged premises; that on the said day her husband selected the property mortgaged as a homestead, had executed a declaration of homestead in proper form, as required by law, had acknowledged the same, which declaration and acknowledgment were recorded on the same day in the proper book of records of Los Angeles county, and that this homestead had never been abandoned; that the property on which the declaration of homestead was made was the common property of her husband and herself; that the property so declared to be a homestead did not exceed $5,000 in value, and the mortgage sued on was not made to secure the purchase money of the homestead, and that she was a resident of this State when said mortgage was executed.

The plaintiff answered the complaint in intervention, and denied that the intervenor was or is the wife of defendant José Dolores Ruiz as alleged; she admitted the filing of the declaration of homestead as alleged, but averred that it had been abandoned by a deed executed and acknowledged on the 21st day of July, 1874, by the intervenor and the defendant José Dolores Ruiz, which deed conveyed the premises described in said declaration of homestead to Francisco Higuera, and that this deed was duly recorded. The other allegations above set forth were also denied.

By an amendment to her complaint, made after the answer of plaintiff above referred to, the intervenor alleged that she had never parted with the title to the premises described in plaintiff’s complaint; that the deed to Higuera was at the time “ intended, and by all known to be, a mortgage to secure” him in and on account of a “joint liability” then assumed by Higuera for her husband; that said liability had been long since satisfied, and all claim of Higuera canceled; that the attorneys of the mortgagee, M. S. Patrick, had no[14]