Dickey v. Gibson

Citations

• 121 Cal. 276
• 53 P. 704
• 1898 Cal. LEXIS 892

Syllabus

<p>Mobtgage—Fobeolosube against Executbix—Pabties—Judgment.—In an , action to foreclose a mortgage against the executrix of the will of the deceased mortgagor, the executrix represents the estate, and it is - not necessary that the heirs be made parties thereto, but the judgment against the executrix binds the heirs and devisees.</p> <p>Id._Shebiff’s Deed—Relation—Obdeb Setting Apabt Homestead—Title. not Adjudicated—Ejectment.—A sheriff’s deed under the foreclosure • of a mortgage relates to the date of the mortgage, and cuts off the interest of all parties derived under the mortgagor subsequent thereto, and an order of the court, setting apart such property as a: homestead for the family of the deceased mortgagor, made subsequently to the sheriff’s deed, cannot impair the interest in the land . acquired by the grantee named in the deed, nor adjudicate title ■ thereto; and the fact that such grantee opposed the order, and that, his opposition thereto was overruled, cannot preclude him from-.. establishing his title to the property in an action of ejectment. .</p> <p>Id.—Demand—Wbit of Assistance—Eight of Possession.—Though a demand for the possession of the premises was made by the judgment of foreclosure a condition of applying for a writ of assistance, it was ¡not necessary that the purchaser, as a plaintiff in ejectment, should make such demand prior to the commencement of that action. The refusal of the court to grant a writ of assistance was not an adjudication as to the right of possession; and the right of the purchaser to bring an action of ejectment for the recovery of the land was not affected by such refusal.</p>