Finger v. McCaughey

SEARLS, C. This is an appeal from an order of the superior court in and for the county of Santa Barbara, granting a writ of assistance in favor of Alex. Lyall and against the appellant.

The facts disclosed by the record show that on the sixth day of June, 1890, George McCaughey, defendant’s intestate, executed to H. J. Finger a mortgage upon the land described therein, to secure the payment of his promissory note for five hundred dollars and interest. McCaughey died, and Susan McCaugh[60]ey, Ills widow, was appointed, and is still, the administratrix of his estate.

The claim of'.Finger was presented to the administratrix and allowed by her, and the allowance approved by the judge of the superior court.

Finger brought suit to foreclose his mortgage, making the administratrix a party defendant. A notice of Us pendens was filed, etc. Defendant was duly served with summons and made default.

A decree in foreclosure in the usual form was entered, under which a sale was had and Alexander Lyall became the purchaser. ISTo redemption having been made, Lyall in due time received a sheriff’s deed, which he presented to appellant and demanded possession as in the decree provided for, and, upon her refusal to yield such possession, filed his petition for a writ of assistance.

Appellant in her answer avers that she was before the institution of the action in foreclosure, and still is, “in possession of the premises, the subject of said suit, under claim of right of possession and of title, and that she was never made a party to said suit and never appeared, and her right to possession has not been and was not litigated in said action. She therefore avers that she is not subject to the terms and provisions of said judgment, and, as she is advised and believes, is not subject to summary removal from said premises upon any process issued upon such judgment.”

The answer of Susan McCaughey does not deny that she is the widow of the mortgagor and the administratrix of his estate. As such administratrix she is entitled to possession of his estate, and her claim of possession and a right of possession will, in the absence of a showing to the contrary, which does not here exist, be attributed to her right as an administratrix.

If the mortgaged premises consist of community property, appellant may be entitled by right of succession to an undivided one-half thereof. Still, if this is so, it was not necessary to make her individually a party defendant in order to bar her right. Heirs of a mortgagor are not necessary parties defendant in an action to foreclose. (Bayly v. Muehe, 65 Cal. 345; Monterey County v. Cushing, 83 Cal. 507; Cunningham, v. Ash