Majority
p. 152[No. 11040. In Bank. January 25, 1889.] JOHN H. WISE et al., Respondents, v. GEORGE GRIFFITH et al., Appellants.
Headnote
Foreclosure of Mortgage—Parties—Subsequent Judgment Lien — Execution Sale—Bights of Purchasers—Statute of Limitations — Amended Comflaint. — A purchaser of mortgaged property at an execution sale pending the foreclosure of a mortgage given prior to the judgment under which the sale took place; is not a necessary party t® the action of foreclosure, though the judgment lien existed before the foreclosure suit was commenced. Such purchaser, if taking with notice of the foreclosure suit, would be bound by the decree, though not made a. party; and if joined by an amended complaint, cannot plead a limitation which had not barred the suit when first begun.Id. — Proof of Notice of Pendency of Action. — It is competent to prove personal notice of the pendency of a foreclosure suit to one who is about to become a purchaser of themosrtgaged property atan execution sale pending the foreclosure suit.
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
The action was brought to foreclose a mortgage executed by George Griffith and wife on the 1st of March,
p. 153
1876. On August 17, 1877, Henry Heuston obtained a judgment against George Griffith. The foreclosure suit was begun on January 9,1878, Heuston not being joined as a party defendant. The mortgaged premises were sold under execution on November 26, 1878, and the sheriff’s deed was recorded on June 6, 1879. Plaintiffs filed an amended complaint on July 25, 1880, making Heuston a defendant, to which the defendant pleaded that the mortgage was barred by the statute of limitations as to him. Heuston excepted to the action of the court in allowing Maurice Casey to testify that on the day of the sheriff’s sale he gave personal notice to the defendant Henry Heuston of the pendency of this action to foreclose the mortgage of the plaintiffs upon the property about to be sold by the sheriff. Judgment was given for the plaintiffs against all the defendants. The defendant Heuston appealed. The further facts are stated in the opinion.
Moses G. Cobb, and R. Percy Wright, for Appellant.
Edward P. Cole, for Respondents.
We find no error in this record. The evidence of Casey was properly admitted.
Defendant Heuston became a purchaser of the mortgaged property pendente lite, with actual notice of the pendency of this action to foreclose the mortgage made by the defendants, Griffith and wife.
We cannot see how the plaintiffs’action against Heuston is barred. He never was a necessary party to the action, but as purchaser with actual notice of the pendency of plaintiffs’ action to foreclose he z would have been bound by the decree against the Griffiths.
Judgment and order affirmed.
Paterson, J., McFarland, J., and Sharpstein, J., concurred.
Rehearing denied.