Burton v. Lies

Citations

• 21 Cal. 87

Syllabus

<p>The presumption attending the acquisition of property, during marriage, by either husband or wife is that the property belongs to the community.</p> <p>In an action to foreclose a mortgage all persons beneficially interested in the mortgaged property at the time of the commencement of the action must be made parties.</p> <p>Where the mortgagor of real property sells and conveys his estate to a married man, and after the death of the grantee (his wife surviving) the mortgagee seeks to foreclose, the widow is a necessary party to the action.</p> <p>The action for the foreclosure of a mortgage upon real property is not brought for the possession merely of the property, except as such possession may follow the Sheriff’s or master’s deed, but to subject to sale the title which the mortgagor had at the time of executing the mortgage, and to cut off the rights of parties subsequently becoming interested in the premises; and executors and administrators do not possess the title, but only a temporary right to the possession.</p> <p>A writ of assistance can only issue against the defendants in the suit, and parties holding under them who are bound by the decree.</p> <p>L., a married man, purchased certain real estate, subject to a mortgage thereon, which had been previously executed by his grantor, and soon afterwards ,died. The mortgagee commenced an action to foreclose the mortgage, making the executors of L., but not the widow, a party, and after a decree of foreclosure and sale and expiration of the time of redemption, received the Sheriff's deed, (himself being the purchaser) and thereupon applied to the Court for a writ of assistance against the widow, who retained possession of a portion of the premises, which on demand she refused to surrender: Held, on appeal from an order denying the writ, that the denial was proper; that the estate conveyed to L. became thereby the common property of himself and wife; that upon his death the title to one-half of this property ve