Hibernia Savings & Loan Society v. Jones

Citations

• 89 Cal. 507
• 26 P. 1089
• 1891 Cal. LEXIS 845

Syllabus

<p>Foreclosure of Mortgages—Sale — Purchase by Plaintiff—Invalid Lien — Reversal upon Appeal — Supplemental Complaint — Accounting. — Where a parcel of land belonging exclusively to one of two mortgagors has been sold under foreclosure of two mortgages, and purchased by the plaintiff in the foreclosure suit, who has applied the pro-,5 ceeds wholly in payment of the first mortgage, which is thereafter adjudged upon appeal to have been invalid and ineffective as a lien against that parcel, and after such reversal the plaintiff has filed a supplemental complaint against such mortgagor alone, setting out the second mortgage, and claiming title under the foreclosure sale to all the property purchased thereat, and seeking an accounting of the whole indebtedness, and an application of the proceeds of sale in payment thereof, and judgment for the residue, the mortgagor who joins in the prayer for an accounting, in his answer to such supplemental complaint, is entitled to judgment against plaintiff, upon such accounting, for the residue of the proceeds of sale, with legal interest, after deducting the amount of the judgment for the second note and mortgage, with legal interest to the date of purchase, and the amount of counsel fees and taxes allowed by the court.</p> <p>Id.—Estoppel of Plaintiff — Inconsistent Positions — Judgment of Foreclosure — Title under Sale not Stayed by Appeal — Accounting — Interest. — The plaintiff cannot treat the former judgment of foreclosure, the execution of which was not stayed by the appeal, as intact for the purpose of claiming title under the sale, and at the same time as open for the purpose of charging conventional interest on the second note and mortgage, compounding monthly, to the date of the accounting; and having proposed an accounting upon the theory that the foreclosure sale should stand, the plaintiff cannot complain that the court allowed an accounting to the defendant upon that theory, and only allowed legal interest upon the j