Schaeffer v. Hofmann

SEARLS, C. This action is brought to quiet the title of ' plaintiff and to procure him to be restored to possession of a tract of land containing about ten acres, situate in Pope valley, county of Napa. Defendant answered, denying the allegations of plaintiff as to his right to possession of the premises; admitted that he (the said defendant) was in possession; and by way of cross-complaint set out that on the fifth day of September, 1884, plaintiff and defendant entered into a verbal agreement by which plaintiff agreed to sell to him the land upon the payment by defendant to him of $150, with interest at eight per cent, within five years, to convey the same to defendant,- etc.; defendant was to take possession of the land at once, and retain the same until payment and conveyance; that defendant entered into possession, cleared the land, fenced it, erected a house and planted a vineyard and orchard thereon, etc.; that defendant has always been ready and willing, and is now anxious, to pay the purchase money, and offers to pay the same into court, and asks that plaintiff be decreed to execute a deed, etc. Plaintiff answered the cross-[841]complaint, claiming, in substance, that the consideration to be paid by the defendant for the land was $650, with interest, $100 of which he admitted had been paid. The cause was tried by the court, and written findings waived. An interlocutory decree was entered, decreeing the defendant to be entitled to a deed of the land from plaintiff upon payment of the sum of money due as purchase money and interest, and referring the question of the amount due to the court commissioner to take testimony and report. The court commissioner reported the sum of $594.28 due plaintiff from defendant. Thereupon, on the thirtieth day of January, 1893, an ordinary common-law judgment was entered in favor of plaintiff, and against defendant, for said sum of $594.28 Thereafter, on the thirteenth day of February, 1893, a decree was duly filed, but which decree purports to have been signed January 30, 1893. By this decree, omitting the formal parts, it was decreed that the sum of $594.28 due plaintiff was secured by a lien upon the land, and constituted a valid mortgage thereon, and which mortgage was ordered foreclosed, and the property sold, etc., as in ordinary cases of foreclosure sale. Defendant departed this life, and the administratrix of his estate, having been substituted as a party defendant, appeals from both judgments.

The cause comes up on the judgment-roll. It is conceded by both parties that the personal judgment was improperly entered, and hence should be reversed, annulled and set aside. As to the final decree the position of appellant is (1) that the first judgment was final, and, although not warranted by the pleadings, was valid upon its face, and no other or further judgment could be entered while it remained in force; (2) that the final decree entered February 13, 1893, holding the demand of plaintiff to be a valid and subsisting mortgage, and foreclosing the same, was not warranted by the pleadings.