Dickey v. Gibson

California Supreme Court Jun 25, 1898 No. Sac. No. 419Published

Before: Harrison

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Holding. The court held that a purchaser of land at a mortgage foreclosure sale acquires title superior to a subsequent homestead order granted to the mortgagor's heirs, and may maintain an action for possession of the property regardless of a prior denial of a writ of assistance.

Issues

Whether a homestead order granted after a mortgage foreclosure sale impairs the title acquired by the purchaser at that sale.
Whether a purchaser at a foreclosure sale is limited to a writ of assistance to obtain possession or may bring an independent action for possession.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The order of the court setting apart the premises as a homestead for the family, made subsequent to the execution of this deed, did not impair the interest in the land which the plaintiff acquired by virtue of the deed.”

“Although the plaintiff derived his title through the judgment in the foreclosure suit, he was not limited to a writ of assistance for the purpose of gaining possession of the land, but was at liberty to bring an action for its recovery”

Synopsis

Mobtgage—Fobeolosube against Executbix—Pabties—Judgment.—In an , action to foreclose a mortgage against the executrix of the will of the deceased mortgagor, the executrix represents the estate, and it is - not necessary that the heirs be made parties thereto, but the judgment against the executrix binds the heirs and devisees.

Id._Shebiff’s Deed—Relation—Obdeb Setting Apabt Homestead—Title. not Adjudicated—Ejectment.—A sheriff’s deed under the foreclosure • of a mortgage relates to the date of the mortgage, and cuts off the interest of all parties derived under the mortgagor subsequent thereto, and an order of the court, setting apart such property as a: homestead for the family of the deceased mortgagor, made subsequently to the sheriff’s deed, cannot impair the interest in the land . acquired by the grantee named in the deed, nor adjudicate title ■ thereto; and the fact that such grantee opposed the order, and that, his opposition thereto was overruled, cannot preclude him from-.. establishing his title to the property in an action of ejectment. .

Id.—Demand—Wbit of Assistance—Eight of Possession.—Though a demand for the possession of the premises was made by the judgment of foreclosure a condition of applying for a writ of assistance, it was ¡not necessary that the purchaser, as a plaintiff in ejectment, should make such demand prior to the commencement of that action. The refusal of the court to grant a writ of assistance was not an adjudication as to the right of possession; and the right of the purchaser to bring an action of ejectment for the recovery of the land was not affected by such refusal.

HARRISON, J. Ejectment for certain lands in the county of Stanislaus. Samuel Gibson was the owner of the lands in question in his lifetime, and executed a mortgage thereon to the plaintiff December 2, 1889, to secure the payment of his promissory note for five thousand seven hundred dollars, with interest. Gibson died May 28, 1894, and his widow, Crecencia Gibson, was appointed executrix of his last "will and testament. October 17, 1894, the plaintiff commenced an action in the superior court for the foreclosure of his mortgage against the said executrix and certain other defendants claiming interests in the mortgaged property. The executrix appeared and answered the complaint, and upon the trial of the cause judgment was rendered in favor of the plaintiff for the foreclosure and sale of the lands in satisfaction of his claim. This judgment was afterward affirmed by this court. (Dickey v. Gibson, 113 Cal. 26; 54 Am. St. Rep. 321.) At the sale under the judgment the plaintiff became the purchaser, and a deed for the land was executed to him by the sheriff December 8, 1895. After the execution of this deed, and after the judgment had been affirmed in this court, the surviving widow, Crecencia Gibson, made an application to the superior court to set aside the lands in question as & homestead for the use and benefit of the family of the de[278]ceased. The plaintiff appeared at the hearing of this application and contested the same, bnt his objections were overruled, and on the nineteenth day of August, 1896, the court made an order setting apart the same as a homestead, which order was on the same day recorded in the office of the county recorder. Prior to the commencement of this action the plaintiff applied to the superior court for a writ of assistance to place him in possession of the premises, which was refused, and on the 10th of July, 1896, he commenced the present action for the possession of the land. The defendants and appellants are the surviving widow and children of Gibson, the deceased mortgagor. Judgment was-rendered in favor of the plaintiff, and the defendants have appealed.

It was held in the case of Dickey v. Gibson, supra, that at the date of the mortgage to the plaintiff the land was the separate-property of Gibson, and that the mortgage by him was valid, and created a lien in favor of his mortgagee. For the foreclosure of this lien after the death of Gibson it was not necessary to-make his heirs parties defendant to the suit. (Bayley v. Muehe, 65 Cal. 345; Collins v. Scott, 100 Cal. 446.) The executrix represented the estate of Gibson, and the judgment against her bound the heirs and devisees of Gibson, and the sale under the judgment related to the date of the mortgage, and cut off the interest of all parties to the suit derived under Gibson subsequent, thereto. By the sheriff's deed under this sale the plaintiff acquired all the right in the land held by Gibson at the time of his death, so that nothing passed to the defendants herein, as heirs of Gibson, either by descent or devise.

Dickey v. Gibson

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