Trope v. Kerns

McFarland, J. Ejectment for a lot of land in Salinas City. Judgment went for plaintiff, and defendant appeals upon the judgment roll.

Plaintiff claimed title through the foreclosure of a mortgage executed to him by defendant, which included the said lot. Plaintiff was the purchaser at the sale under the decree of foreclosure, and the time for redemption having expired, he received a sheriff’s deed for the premises.

1. Defendant, in addition to a denial of the averments of the complaint, made a plea in abatement founded on the point that as plaintiff might have had a writ of assistance in the foreclosure suit, therefore he cannot 'maintain ejectment. This point is not tenable. A writ of assistance is a summary proceeding which a plaintiff may sometimes advantageously avail himself of; but such proceedings are not res adjudícala as to many questions that may arise; and a right to the writ does not deprive a party of the fuller remedy afforded by an ordinary action. The cases cited by appellant are not in point; [555]and we have been referred to no case which restricts a party to a writ of assistance.

2. Defendant filed a cross-complaint, which stated certain facts upon which he contends the decree of foreclosure should have omitted a certain part of the eastern end of the lot, and that, by mistake, such part was included in the decree, and that the mistake was not discovered until the commencement of this action. With respect to this matter, the court finds these facts: In the foreclosure suit the defendant herein, Kerns, and his assignee in insolvency, Franks, and certain other persons, were made parties defendant. All the defendants suffered default except Kerns and Franks, who filed demurrers to the complaint. Afterward an agreement was made between the plaintiff and said Kerns and Franks “that said demurrers were to be withdrawn, and plaintiff was to be permitted to take a judgment and decree for the sale of the land described in the complaint herein, and thereupon findings and decree were drawn up in accordance with said agreement, and also a stipulation embodying the agreement of said parties as aforesaid; that afterward, on the twenty-seventh day of April, 1880, the attorneys of the respective parties, and also defendant Kerns, appeared in open court, and said attorneys agreed to alter and change said stipulation by inserting therein these words, ‘to the base of J. B. Iverson’s tank-frame,’ and the same was so altered and changed, and then and there the same was signed by said attorneys of plaintiff and defendants; but neither the said F. H. Trope nor the said Franks, assignee, were in court, or at any time consented thereto or had any knowledge thereof.” (The mortgage also included other land than that described in the complaint.) It is further found that the judgment was entered in accordance with the original stipulation of the parties, which embraced the whole of the lot, and not in accordance with the change which the attorneys made, or- attempted to make, by which a part of the lot