Macovich v. Wemple

Citations

• 16 Cal. 104
• 1860 Cal. LEXIS 178

Syllabus

<p>Plaintiff purchased certain property under a sale on a decree foreclosing a mortgage executed by one Pender, to which decree all persons in interest were parties, among them defendants here. The interest of defendants Wemple and Pender were foreclosed in the usual form. Plaintiff seeks to enjoin a sale of the premises under a decree in favor of Wemple against Pender, to enforce a mechanic’s lien. Plaintiff was not a party to the suit of Wemple v. Pender, and has not yet got a Sheriff’s deed: Held, that injunction does not lie; that plaintiff is but the purchaser of an equity, the decree of foreclosure not cutting off the rights of the mortgagor, Pender; that he, being entitled to possession until the Sheriff’s deed, and also having the equity of redemption, could dispose of this right, and it might, under our statute, be sold for his debts; that if he chose to recognize the validity of Wemple’s lien, or its enforcement, or sale under judgment, plaintiff cannot complain—his rights not being affected by the proceedings, as he was not a party.</p> <p>Plaintiff, on obtaining his Sheriff’s deed, can then institute the necessary proceedings to enforce his rights, and the purchaser at the Sheriff’s sale under Wemple’s decree will occupy no better position than Wemple himself. But so long as Pender has any interest in the property, plaintiff cannot, in advance of his own title, or of the extinction of Pender’s, come into equity to enjoin the sale.</p>