De Leon v. Higuera

Citations

• 15 Cal. 483

Syllabus

<p>Although it does not appear from the record on appeal that a demurrer to the complaint was formally disposed of, yet, if it does appear in the statement that one of the errors relied on is “ the ruling of the Court on the demurrer, and that the same should have been sustained ;” and if the appellant went to trial without insisting on a disposition of the demurrer, he cannot object in the Supreme Court that the demurrer was not formally disposed of.</p> <p>A subsequent purchaser of land mortgaged is a proper if not necessary party to a foreclosure suit; and if the complaint be faulty in praying to hold him as trustee of the mortgagor, on account of fraud in the purchase, such defect cannot be reached by demurrer.</p> <p>Query, whether in a foreclosure suit in the Seventh District as to land situate in Contra Costa county, a party can appear and contest the case in San Francisco, before the Judge of the Seventh District, under a stipulation, and without exception as to the place of trial, and afterward assign that fact as error.</p> <p>Bill avers, in substance, plaintiff to be holder of several notes and mortgages executed to him by defendants, H. and wife, and that defendant, O’D., proposed to plaintiff to buy said notes and mortgages for a certain sum, which plaintiff agreed to take; that O’D. desired, before closing the purchase, to see H. and wife, and learn whether they could be induced or compelled to pay the notes, asked plaintiff for the notes and mortgages to show H. and wife, and that plaintiff delivered them to him, relying on his honesty; that O’D. saw H. and wife, who were illiterate, and by representing himself as the owner of the notes, etc., which he exhibited, by threatening to sue, etc., induced H. and wife to give him an absolute deed in fee simple of the mortgaged premises for one hundred dollars, the premises being worth many thousands of dollars ; that O’D. then returned the notes, etc., declined purchasing of plaintiff, and concealed the fact