Hibernia Savings & Loan Society v. Lewis

The Court. This cause was submitted to Department One, and on January 23, 1897, the following decision was rendered:

“Searls, C.—Two appeals were taken in this case— one from an order refusing to vacate the judgment and the other from an order granting a writ of assistance. Upon motion of counsel for respondent the appeal from the order refusing to vacate the judgment was dismissed. (Hibernia etc. Soc. v. Lewis, 111 Cal. 519.) It follows that the only questions for consideration are those involved in the appeal from the order granting the writ of assistance.

“The action was brought December 1, 1892, to foreclose a mortgage executed May 26, 1891, by Anna A. Lewis and William F. Lewis (who are husband and wife) upon a city lot, situate at the southeasterly corner of Jackson and Baker streets, San Francisco, to secure the joint and several promissory note of the mortgagors, bearing even date with the mortgage, for seven thousand dollars, and payable one year after date, with interest, etc. The mortgage was duly recorded at the date of its execution. The Santa Cruz Rock Pavement Company and sundry other parties were made defendants, as subsequent lienholders, but as they are not involved in this appeal they need not be further mentioned. Summons was duly served upon Anna A. Lewis and she made default. Defendant William F. Lewis was served with summons March 1, 1894, in Sonoma county, and appeared, and in March, 1894, filed a demurrer to the complaint, which was overruled, whereupon, and on April 11,1894, he filed an answer in the case. On May 31,1894, on motion of defendant William F. Lewis, he [580]was permitted to withdraw his answer. A decree of foreclosure was entered in due form December 5, 1894, under which the mortgaged property was duly sold, the plaintiff (respondent here) became the purchaser, and, no redemption having been had, a deed was in due form executed, exhibited to appellant, who was in possession, and possession demanded from him, which was refused, and thereafter, on application of plaintiff, and after a hearing and opposition by appellant, the writ issued. The appellant, J. D. Boyer, was in possession of the property under a deed of conveyance executed by the mortgagors, Anna A. and William F. Lewis, May 4, 1893, and duly recorded at the date thereof.

“As will be seen from the foregoing statement, appellant purchased the mortgaged premises during the pendency of the action to foreclose. A writ of assistance is the proper remedy to place the mortgagee who has purchased under a foreclosure sale in possession under his deed. It runs against the mortgagor and all persons who have purchased the fee under him pendente lite with notice. (Freeman on Executions, sec. 37 d; Wiltsie on Foreclosures, sec. 593; Montgomery v. Tutt, 11 Cal. 190; Frisbie v. Fogarty, 34 Cal. 11; Skinner v. Beatty, 16 Cal. 156; Montgomery v. Middlemiss, 21 Cal. 103; 81 Am. Dec. 146; Sichler v. Look, 93 Cal. 600; Newmark v. Chapman, 53 Cal. 557.)