Patton v. Thomson

VANCLIEF, C. In this case a demurrer to the complaint was sustained by the court below, and, as plaintiffs declined to amend, judgment passed for defendants. Plaintiffs bring this appeal from the judgment on the judgment-roll, and contend that the court erred in sustaining the demurrer. The material substance of the complaint may be briefly stated as follows: In May, 1887, George E. White commenced an action to foreclose a mortgage executed by Milo Patton and J. H. Patton on a tract of land owned by them, to which action the defendant herein, David Thomson, was made a party defendant on the ground that he claimed a subsequent lien upon the mortgaged land. Thomson appeared, and filed a cross-com[872]plaint setting up his subsequent mortgage executed by Milo and J. H. Patton on the same land, and praying that it be foreclosed, but failed to serve his cross-complaint on the Pattons, his codefendants, against whom he prayed for such relief. In October, 1887, the Pattons having failed to answer or appear, the court decreed a foreclosure of each mortgage, ordered a sale of the land, and directed the proceeds of the sale to be applied—First, to the payment of $5,127 found due on White’s prior mortgage; and, second, to the payment of $4,500.34 found due on Thomson’s subsequent mortgage; and further ordered the docketing of a judgment in favor of Thomson against the mortgagors for any deficiency, etc. On November 28, 1887, in pursuance of the order of sale, the sheriff sold the mortgaged land to Thomson for the sum of $8,400, and, no redemption having been made within the time limited by law, conveyed the land to Thomson. In September, 1888, the mortgagors (the Pattons) appealed from the judgment of foreclosure, whereupon in December, 1890, so much of the decree as pertained to the foreclosure of Thomson’s mortgage, and the docketing of a judgment in his favor, was reversed, and “the cause remanded,” for the reason that Thomson’s cross-complaint had been served on the mortgagors: 87 Cal. 151, 25 Pac. 270. The remittitur was filed in the lower court January 17, 1891, but it is not alleged whether or not there has been any further proceeding in the case since the filing of the remittitur. The proceeds of the sale of the mortgaged property ($8,400) exceeded the amount necessary to satisfy White’s prior mortgage and costs by the sum of $3,080.32, but what disposition was made of this excess is not alleged. J. H. Patton having died December 1, 1890, letters of administration upon his estate were issued to James A. Foster May 26, 1891. Upon these facts the plaintiffs demand judgment against the defendant for $3,080.32, the excess of the proceeds of the foreclosure sale after payment of White’s prior mortgage and costs.