Jeffers v. Cook

McKee, J.: On the 11th of June, 1873, O. F. Cook made and delivered to Mary M. Coffin his promissory note for the sum of two thousand five hundred dollars, payable twelve months after date, .with interest thereon at the rate of one and a half per cent, per month, to be compounded if not paid every six months, and five per cent, of principal and interest as a counsel fee, in case it were necessary to institute a suit for the recovery of the note and the foreclosure of a mortgage, which was executed by the said Cook to secure payment of the note. The mortgage was recorded on the day of its execution, in the office of the Recorder of Colusa County, and on May 27, 1878, the mortgagee assigned the promissory note [149]and mortgage to Emeline Coffin, who, on that day, commenced an action of foreclosure upon them, in the late Dis■trict Court of Colusa County, against the mortgagor alone.

In the proceedings, judgment for the amount of the principal and interest of the note, besides counsel fees and costs, and a decree of foreclosure were rendered and entered on August 14, 1878, in favor of the plaintiff and against the defendant mortgagor, upon which an order for sale was regularly issued, and came to the hands of the Sheriff of Colusa County, who, after advertising the mortgaged premises according to law, sold the same to the plaintiff, executed and delivered to her a certificate of sale, which was filed, and, upon the expiration of six months after the sale—no redemption having been made—executed and delivered to her a deed of said premises, which was duly recorded.

But on the 13th day of August, 1877, more than nine months before the commencement of the action against Cook to foreclose the mortgage, and a year and a day before the rendition and entry of the judgment and decree of foreclosure, Cook, the mortgagor, had sold and conveyed by deed the mortgaged premises to E. A. Harris, Thomas Eddy, Stephen Burtis, Andrew Meyer, C. Grimes, Richard Gleason, George Strinchfield, and Richard Brown, and they, having recorded their deed on the day of its execution, subsequently, to wit, June 16, 1879, conveyed the premises by deed to E. J. Burtis, who, having recorded his deed, entered into possession of the land. Hone of those persons were made a party to the proceedings in foreclosure; the decree of sale of the mortgaged premises was therefore void as to each of them, and the purchaser under the void decree acquired no title. But after-wards, by the order and judgment of the Superior Court of Colusa County, on the petition of the plaintiff, the decree of sale, the order of sale, and the sale made thereunder, were vacated and set aside, and the plaintiff was granted leave to file a supplemental complaint in the action, “ bringing in and making parties thereto, all of the grantees named in said deeds, and all persons whomsoever, having or claiming any interest in or claim upon said premises or any part thereof, acquired after the execution of the mortgage.”