Wolfe v. Titus

California Supreme Court Apr 13, 1899 No. S. F. No. 1047Published

Before: Dyke

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Holding. The court held that the complaint failed to state a cause of action because the plaintiff sought equitable relief without offering to do equity by repaying funds advanced for his benefit, and because the alleged grievances could be addressed as a defense or cross-complaint in the pending foreclosure action.

Issues

Whether a complaint seeking cancellation of a note and mortgage and an injunction against a pending foreclosure action states a cause of action when the plaintiff fails to offer to pay the amounts advanced for his benefit.
Whether a party may maintain an independent action to enjoin a pending foreclosure proceeding when the alleged facts could be pleaded as a defense or cross-complaint in that action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is elementary that no one may go into court without having some right to enforce or wrong to redress; and that facts must be stated showing such right or wrong to exist”

“The first suggestion which presents itself to the mind upon a perusal of the complaint is that the plaintiff is seeking equity without doing equity.”

Synopsis

Equity—Pleading — Insufficient Complaint.—A complaint seeking equitable relief is insufficient, if it does not state facts showing ■' the existence of a right to enforce, or a wrong to redress, as . distinguished from mere epithets, however profuse or vehement, • ,and does not show that the plaintiff has been damaged, or shows that he is seeking equity without. doing equity.

Id.—Cancellation of Instruments—Injunction—Compelling Conveyance—Complaint without Equity.—A complaint seeking to cancel a' note and mortgage, and to enjoin its pending foreclosure, and •. for equitable relief against the foreclosure of prior mortgages, , and to compel a conveyance of title obtained thereunder, which shows that the mortgagee agreed to use the money to buy in the property under the prior foreclosure for plaintiff’s benefit, but avers that he fraudulently conspired with another defendant to buy in the prior mortgages before the decree, and to' obtain title under foreclosure thereof, which was obtained at an expenditure of one thousand dollars less than the face of the note and mortgage given him, but does not aver any payment or offer . of payment of the money actually advanced, does not show any ground for equitable relief, or state facts sufficient to constitute a cause of action.

Id.—ILelief in Pending Action.—If the plaintiff is entitled to any relief growing out of the transactions set forth in the complaint, such relief may he amply afforded in the pending action to foreclose the mortgage sought to be canceled; and he cannot institute another action to enjoin further proceedings in that action, hut is bound to seek any relief to which he may be entitled, either by answer, or by cross-complaint in the foreclosure action.

VAN DYKE, J. The court below sustained the demurrers of the defendants without leave to1 amend the complaint, and thereupon entered judgment dismissing the action, with costs to the defendants. From this judgment the appeal is taken. [265]Appellant’s counsel states the object of the action as follows: “This action was commenced for the cancellation of an alleged promissory note in the principal sum of six thousand dollars, and mortgages to secure the same upon certain real estate described in the complaint, and for an injunction against an action pending for the foreclosure of the note and mortgage at the commencement of the action; also to restrain the enforcement of certain deficiency judgments docketed in favor of respondents and against appellant in a prior action of foreclosure of the premises pending at the time of the making of the note and mortgage for six thousand dollars, to wit, October 1, 1891, and commenced by the Mutual Savings Fund and Building Association against this appellant and others, and to enjoin all further proceedings upon the sheriff’s deed in the last-named action; for a reconveyance of the premises, and general equitable relief.”

The complaint alleges that on or about the first day of October, 1891, plaintiff made and delivered to said defendant, Samuel Sussman, his certain promissory note in the words and figures following, to wit:

“$6,000. San Francisco, Cal., Oct. 1, 1891.

“On or before October 1, 1892, for value received, I promise to pay to the order of Samuel Sussman, in San Francisco, six thousand ($6,000) dollars, in gold coin of the United States, with interest from date at the rate of one per cent per month until paid, payable monthly in like gold coin.

“GEORGE H. WOLFE.”

That at that time plaintiff and said defendant Daniel Titus made and executed to the said defendant Samuel Sussman a deed of conveyance, in due form, of a certain lot and parcel of land in the city and county of San Francisco (describing the same). “That on or about said first day of October, 1891, said defendant, Samuel Sussman, made and delivered to plaintiff his certain memorandum of agreement in writing, and it was then and thereby understood and agreed by and between plaintiff and said defendant Sussman that said deed of conveyance, though absolute in form, was made as security for the payment of said promissory note and interest thereon, according to the •tenor thereof. That no part of said sum of six thousand dol

Wolfe v. Titus

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