Cummings v. Ketchum

Citations

• 75 Cal. 434
• 17 P. 442
• 1888 Cal. LEXIS 564

Syllabus

<p>Divorce—Partition of Community Property—Mortgagee in Possession. —In a decree granting a divorce, the court has no power, under section 146 of the Civil Code, to order a partition of community real estate, which is in the lawful possession of a mortgagee’under a mortgage covering the whole thereof, until the lien of the mortgage has been satisfied or redeemed; nor in such a decree can it be adjudged that a proportionate part of the mortgage shall be chargeable on the portion of the mortgaged premises allotted to one of the parties, and the balance on the portion allotted to the other.</p> <p>Id.—Appointment of Receiver — Rents and Profits.—In such an action, where the mortgagee in possession has not committed waste or otherwise abused Ms position, the court has no power to appoint a receiver to collect the rents and profits of the mortgaged property, or to provide that such rents and profits shall be applied to the payment- of alimony and counsel fees before being applied to the claim of the mortgagee.</p> <p>Pleading—What Relief may be Granted under General Prayer.— Where the defendant has answered, the court may, under the prayer for general relief in the complaint, grant any relief consistent with the facts alleged in the complaint; but under the general prayer, no relief can be granted in equity beyond that which is authorized by the facts stated in the pleadings.</p>