Klink v. Cohen

Citations

• 15 Cal. 200
• 1860 Cal. LEXIS 82

Syllabus

<p>Action to recover certain real estate as the homestead of plaintiffs. Complaint avers that plaintiff K. alone executed to C. his note, and a mortgage on the property in question to secure its payment. C. foreclosed, making K. and wife, and also several persons holding subsequent mortgages, parties. K. and wife made default, but the other defendants answered, asking for a sale of the property and a decree settling priorities, etc. The Court ordered a sale of the property, and that, in case of insufficiency of the proceeds to satisfy all the mortgages, they be paid in a certain order—C.’s mortgage being last. Held, that plaintiffs cannot recover without showing that these subsequent mortaages were invalid and insufficient to pass the title, because the complaint avers the sale to have been made under them as well as under the mortgage to C.</p>