Collins v. Scott

Citations

• 100 Cal. 446

Syllabus

<p>Pleading—Amendment oe Complaint—Waiver oe Error.—Where an amended complaint is filed after the action of the court in striking out portions of the original complaint, the error, if any, in the order striking out, is thereby waived.</p> <p>Id.—Amended Complaint—Superseding Original.—An original complaint is superseded by the amended, and thenceforth fills no office as a pleading, except as evidence of the date at which suit is brought and for a few other purposes.</p> <p>Id.—Homestead Upon Community Property—Succession.—A homestead declared upon community property becomes, upon the death of the husband, the sole property of the surviving wife, and the heirs at law of the deceased husband acquire no interest in it by succession.</p> <p>Id.—Mortgage Upon Homestead—Personal Contract of Mortgagee Wit'S Wife and Children—Defense to Foreclosure.—Where the mortgagee of community property upon which a homestead has been declared induces the wife to unite in the execution of the mortgage, by a promise that in the event of any action to foreclose and sell the mortgaged premises, he would set apart and convey to the wife and her children a quantity of land of a specified value, to he secured and conveyed as a homestead for their benefit either out of the mortgaged premises or elsewhere in a specified locality, without incorporating the agreement in the mortgage, such promise is personal to the wife and her children, and creates no lien in their favor upon the mortgaged premises, and constitutes no defense to an action to foreclose the mortgage, hut gives only a right of action at law for its breach.</p> <p>Id.—Parties to Foreclosure.—Heirs at law of the mortgagor are not necessary parties to an action to foreclose a mortgage.</p> <p>Id.—Fraud—Relief Against Decree.—To entitle the defendant to relief against a decree on the ground/>f fraud it must appear that he had a good defense on the merits, and that such defense had been lost to him without fault on his part.</p> <p>Id.—