Yndart v. Den

CHIPMAN, C. Appeal from an order modifying the judg[86]ment herein, but refusing to set aside a sale made under the original judgment and restore the property so sold.

The action was for foreclosure of mortgage, in which judgment was entered May 14, 1895. On June 8, 1895, the mortgaged premises were sold, and on the same day the sheriff made return of full satisfaction of the judgment, and on December 10, 1895, his deed was made to the plaintiff as purchaser. On December 7, 1895, the day before the time for redemption had expired, defendants appealed from the judgment of foreclosure to this court; its decision was rendered April 33, 1897, and is reported in Yndart v. Den, 116 Cal. 533; 58 Am. St. Rep. 200. The judgment here was that the original decree included interest in excess of that which should be allowed, and the cause was remanded, with directions to modify the decree in this particular “as of the date when the judgment appealed from was entered; and when thus modified and entered the decree will stand affirmed.” Remittitur was filed in the lower court May 36, 1897. Thereupon defendants served notice that they would, on June 4, 1897, move the court to modify said decree, as originally made and entered, “in accordance with the decision of the supreme court in said matter”; and that “by virtue of said modification and decision .... to set aside the sale of the property made by the sheriff .... as shown by the return of the sheriff filed in said cause; and to make restitution to said defendants of all property and rights lost by the said erroneous judgment and decree of said superior court,” et cetera. The motion was to be heard upon the papers on file in said cause and on the affidavit of defendant E\\ C. Den. In his affidavit defendant Den avers that he is the husband of defendant Isabel Den, to whom the mortgaged premises belonged, and as her agent has attended to all business connected with said action, and is more familiar with the same than the said Isabel; that the property sold for seventeen thousand seven hundred and eleven dollars and one cent, and plaintiff became the purchaser to whom certificate of purchase was issued, and to whom on December 10, 1895, the sheriff delivered his deed to said property, and that plaintiff thereupon went into possession and has ever since remained in possession thereof under said deed; that at that time and now, said property was of the market value of twenty-five [87]