Brackett v. Banegas

Citations

• 116 Cal. 278
• 48 P. 90
• 1897 Cal. LEXIS 538

Syllabus

<p>Mortgage—Declaration of Homestead by Mortgagor — Foreclosure —Wife of Mortgagor a Necessary Party—Void Decree and Sale —Second Action—Costs.—Where a homestead was declared by the mortgagor on the mortgaged premises subsequently to the mortgage, the wife of the mortgagor is a necessary party to the foreclosure, and if she is not made a party, the decree of sale, and the sale thereunder to the mortgagee, are void as to the entire security, as against both husband and wife, and in such case a second action may be brought by the mortgagee to adjust the equities of all the parties, and to foreclose the mortgage anew, against all necessary parties, hut in such second action he cannot recover the costs of the original action or sale.</p> <p>Id.—Status of Husband and Wife as to Homestead—Ineffectual Foreclosure.—The status of the husband and wife as to the homestead is sui generis; and a foreclosure as to one of the spouses is ineffectual for any purpose, without the joinder of the other, except in those cases where the homestead has a value in excess of five thousand dollars.</p> <p>Id.— Remedy by Motion and Supplemental Bill — Mistakes of Law and Fact—Lapse of Time for Motion — Laches — Oversight of Searohers of Records — Relief in Equity.—Courts of equity will rarely relieve from a mistake of law in regard to the parties in a fore- • closure suit, in a separate action, and the usual and proper remedy, for want of a necessary party, after a decree and sale has been had, is by motion in the original action to vacate the decree and for leave to file a supplemental hill so as to bring in the necessary parties; but where the mistake in omitting a necessary party is one of fact as to the existence of a homestead, which renders the decree void as to the security for any purpose, and the lapse of the six months prescribed by section 473 of the Code of Civil Procedure is not owing to the personal laches of the mortgagee, but to the oversight of a company of searchers of record