Sigourney v. Zellerbach

Citations

• 55 Cal. 431

Syllabus

<p>Pleading—Relief.—It is a cardinal rule that the pleading of the party to whom relief is granted must he sufficient to warrant the relief.</p> <p>Id.—Id.—Intervention—Marshaling Securities.—Escrow.—In an action to foreclose a mortgage, a complaint in intervention was filed, setting up a contract between the plaintiff and the defendaht Z. (the mortgagor’s grantee); whereby the former agreed to execute to the latter an assignment of the note and mortgage in suit, (and of another note and mortgage) and to place the same, with the instruments assigned, in escrow with one P.; Z., thereupon, to give his notes to the plaintiff for specified sums, and the assignment and instruments assigned to remain in the hands of P. as security for the payment of the notes, until Z. should deliver to him, as collateral security for the notes, certain shares of stock, and then to be delivered to Z.; the complaint in intervention further alleging full performance of the contract by Z., and the conveyance of the mortgaged premises by him, with warranty against incumbrances to the intervenor, and praying that the notes and mortgages be decreed to be delivered up and canceled, or, if the Court held the mortgage to be still in effect, that the stock delivered by Z. to P. should be first sold, and the proceeds applied on the mortgage. Z. answered the original complaint, setting up the same facts as the intervenor, but suffered default to the complaint in intervention. The Court found that such a contract had been made, and that Z. had made and delivered to the plaintiff his notes, and had delivered to P. certain shares of stock of the kind but not of the quantity required by the contract, and that the stock had not been accepted by the plaintiff in satisfaction of the contract, and decreed that the stock should first be sold and the proceeds applied on the mortgage, and that the mortgaged premises should be sold for the balance only. Held, that the allegations of the complaint were insufficie