HARRISON, J.
Suit to quiet title. The complaint sets forth that in the year 1884 Gaetano Beronio, Sr., was the owner of the land involved in the action, and built thereon a two-story brick building for the purpose of conducting therein a general merchandise store and hotel. He was at that time unmarried, and with his servants conducted said business and hotel until December 29, 1886, when he married, and thereafter with his wife continued to conduct said business, occupying a portion of the building with his family for that purpose-There were several other buildings upon the lot, separated from the hotel 'building, all of which were used in connection with the hotel business, hut not as the dwelling of Beronio or of his family. February 3, 1887, he executed and acknowledged a
declaration of homestead upon said lot, sufficient in form, and filed the same with the county recorder. January 10, 1891, he executed a deed of conveyance of said lot to Charles Ingalls, which was recorded in the office of the county recorder on the same day. This conveyance was intended for the benefit of the plaintiffs herein, and on June 4, 1893, Ingalls conveyed the lot to them by deed, which was recorded on the same day. April 13, 1893, Beronio, Sr., and his wife executed a mortgage of the lot to Boger MeMenamin, and on December 13, 1896, Catherine Walsh, to whom this mortgage had been assigned, commenced an action for its foreclosure, in which these plaintiffs were named as defendants. In the complaint therein it was alleged that these plaintiffs claimed an interest in said mortgaged premises, and that their claim was subsequent and subordinate to said mortgage, and the court found and decreed in that action in accordance with this allegation. Under the judgment rendered therein the property was sold by the sheriff October 16, 1897, to Catherine Walsh for the amount of the judgment and costs, and immediately thereafter she assigned the sheriff’s certificate to the defendant herein, to whom on April 17, 1898, the sheriff executed a deed of conveyance. Upon these facts the plaintiffs ask that the sheriff’s deed be adjudged void, and that their title to the premises be quieted against any claim of the defendant. The defendant demurred to the complaint upon the ground that it failed to state a cause of action, and also upon the ground that two causes of action had been improperly united therein, viz., an action to* quiet the plaintiff’s title, and an action to have the sheriff’s deed declared void. The demurrer was sustained by the court, and from the judgment entered in favor of the defendant the plaintiffs have appealed.
1. The complaint presents only a single cause of action, viz., the enforcement of the plaintiff’s right to the premises in question against the unlawful claim of the defendant thereto. As a portion of the remedy for the enforcement of that right it seeks the annulment of the sheriff’s deed, but a plaintiff may frequently be entitled to several species of remedy for the enforcement of a single right. (Pomeroy’s Code Remedies, sec.
459;
Hutchinson v. Ainsworth,
73 Cal. 452
;
McLennan v. McDonnell,
78 Cal. 273.)
2. Upon the authority of
McLaughlin v. Wright,
63 Cal. 113, affirmed in
McDowell v. His Creditors,
103 Cal. 264,
the declaration filed by Beronio did not have the effect to impress the property with any of the characteristics of a homestead. The conveyance by Beronio, without his wife uniting therein, had the effect, therefore, to transfer to Ingalls the title to the property, and, being of record at the date of the execution of the mortgage, was notice to the mortgagee that Beronio had already parted with his title thereto. Under the conveyance by Ingalls to the plaintiffs they therefore took the property freed from the encumbrance of the mortgage, or of any title derived thereunder.
3. It is contended, however, on behalf of the defendant that, inasmuch as the plaintiffs herein were made parties defendant in the foreclosure suit, and the court decreed in that action that their rights and interests in the mortgaged premises were subsequent and subordinate to the mortgage, they are estopped from asserting any claim thereto adverse to the title derived by virtue of the sale under said judgment of foreclosure.
In order that a judgment in one action may constitute an estoppel against the parties thereto in a subsequent action, it must be made to appear, either upon the face of the record or by extrinsic evidence, that the identical questions involved in the issues to be tried were determined in the former action. (1 Greenleaf on Evidence, sec. 528;
Kerr v. Hays,
35 N. Y. 331;
Cromwell v. County of Sac,
94 U. S. 351;
Russell v. Place,
94 U. S. 606;
Lillis v. Emigrant Ditch Co.,
95 Cal. 553.) “Every, estoppel must be certain to every intent, and not to be taken by argument or inference.” (Coke on Littleton, 352 b.) “If upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered in evidence.”
(Russell v. Place, supra.)
By section 1908, subdivision 2, of the Code of Civil Procedure, the effect of a judgment is conclusive “in respect to the matter directly adjudged,”
and, by section 1911, "that only is deemed to have been adjudged in a former action which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”
The object of a suit for the foreclosure of a mortgage is to-subject to a judicial sale and vest in the purchaser thereunder the same title or estate in the mortgaged prpperty which the mortgagor had at the time of the execution of the mortgage, and the only proper or necessary parties defendant to such suit are the mortgagor and those who claim an interest in the property derived subsequent to the date of the mortgage. Titles adverse to that of the mortgagor, or superior to that covered by the mortgage, are not proper subjects for determination in the suit. (Jones on Mortgages, sec. 1589; Wiltsie on Foreclosure, secs. 191,
192; McComb v. Spangler,
71 Cal. 418.) Whenever it is made to appear that the interest of a defendant is adverse or superior to that covered by the mortgage, the proper action of the court is to dismiss him from the suit.
(Ord v. Bartlett,
83 Cal. 428;
Code v. Bean,
93 Cal. 578;
Hoppe v. Fountain,
104 Cal. 94.) If, however, the plaintiff makes the holder of an adverse title a party defendant to the foreclosure suit, setting forth facts from which he claims that such title is subordinate to his mortgage, and issues upon these facts are presented for adjudication without objection on the part of the defendant, the judgment of the court thereon will not be void.
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HARRISON, J.
Suit to quiet title. The complaint sets forth that in the year 1884 Gaetano Beronio, Sr., was the owner of the land involved in the action, and built thereon a two-story brick building for the purpose of conducting therein a general merchandise store and hotel. He was at that time unmarried, and with his servants conducted said business and hotel until December 29, 1886, when he married, and thereafter with his wife continued to conduct said business, occupying a portion of the building with his family for that purpose-There were several other buildings upon the lot, separated from the hotel 'building, all of which were used in connection with the hotel business, hut not as the dwelling of Beronio or of his family. February 3, 1887, he executed and acknowledged a
declaration of homestead upon said lot, sufficient in form, and filed the same with the county recorder. January 10, 1891, he executed a deed of conveyance of said lot to Charles Ingalls, which was recorded in the office of the county recorder on the same day. This conveyance was intended for the benefit of the plaintiffs herein, and on June 4, 1893, Ingalls conveyed the lot to them by deed, which was recorded on the same day. April 13, 1893, Beronio, Sr., and his wife executed a mortgage of the lot to Boger MeMenamin, and on December 13, 1896, Catherine Walsh, to whom this mortgage had been assigned, commenced an action for its foreclosure, in which these plaintiffs were named as defendants. In the complaint therein it was alleged that these plaintiffs claimed an interest in said mortgaged premises, and that their claim was subsequent and subordinate to said mortgage, and the court found and decreed in that action in accordance with this allegation. Under the judgment rendered therein the property was sold by the sheriff October 16, 1897, to Catherine Walsh for the amount of the judgment and costs, and immediately thereafter she assigned the sheriff’s certificate to the defendant herein, to whom on April 17, 1898, the sheriff executed a deed of conveyance. Upon these facts the plaintiffs ask that the sheriff’s deed be adjudged void, and that their title to the premises be quieted against any claim of the defendant. The defendant demurred to the complaint upon the ground that it failed to state a cause of action, and also upon the ground that two causes of action had been improperly united therein, viz., an action to* quiet the plaintiff’s title, and an action to have the sheriff’s deed declared void. The demurrer was sustained by the court, and from the judgment entered in favor of the defendant the plaintiffs have appealed.
1. The complaint presents only a single cause of action, viz., the enforcement of the plaintiff’s right to the premises in question against the unlawful claim of the defendant thereto. As a portion of the remedy for the enforcement of that right it seeks the annulment of the sheriff’s deed, but a plaintiff may frequently be entitled to several species of remedy for the enforcement of a single right. (Pomeroy’s Code Remedies, sec.
459;
Hutchinson v. Ainsworth,
73 Cal. 452
;
McLennan v. McDonnell,
78 Cal. 273.)
2. Upon the authority of
McLaughlin v. Wright,
63 Cal. 113, affirmed in
McDowell v. His Creditors,
103 Cal. 264,
the declaration filed by Beronio did not have the effect to impress the property with any of the characteristics of a homestead. The conveyance by Beronio, without his wife uniting therein, had the effect, therefore, to transfer to Ingalls the title to the property, and, being of record at the date of the execution of the mortgage, was notice to the mortgagee that Beronio had already parted with his title thereto. Under the conveyance by Ingalls to the plaintiffs they therefore took the property freed from the encumbrance of the mortgage, or of any title derived thereunder.
3. It is contended, however, on behalf of the defendant that, inasmuch as the plaintiffs herein were made parties defendant in the foreclosure suit, and the court decreed in that action that their rights and interests in the mortgaged premises were subsequent and subordinate to the mortgage, they are estopped from asserting any claim thereto adverse to the title derived by virtue of the sale under said judgment of foreclosure.
In order that a judgment in one action may constitute an estoppel against the parties thereto in a subsequent action, it must be made to appear, either upon the face of the record or by extrinsic evidence, that the identical questions involved in the issues to be tried were determined in the former action. (1 Greenleaf on Evidence, sec. 528;
Kerr v. Hays,
35 N. Y. 331;
Cromwell v. County of Sac,
94 U. S. 351;
Russell v. Place,
94 U. S. 606;
Lillis v. Emigrant Ditch Co.,
95 Cal. 553.) “Every, estoppel must be certain to every intent, and not to be taken by argument or inference.” (Coke on Littleton, 352 b.) “If upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered in evidence.”
(Russell v. Place, supra.)
By section 1908, subdivision 2, of the Code of Civil Procedure, the effect of a judgment is conclusive “in respect to the matter directly adjudged,”
and, by section 1911, "that only is deemed to have been adjudged in a former action which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.”
The object of a suit for the foreclosure of a mortgage is to-subject to a judicial sale and vest in the purchaser thereunder the same title or estate in the mortgaged prpperty which the mortgagor had at the time of the execution of the mortgage, and the only proper or necessary parties defendant to such suit are the mortgagor and those who claim an interest in the property derived subsequent to the date of the mortgage. Titles adverse to that of the mortgagor, or superior to that covered by the mortgage, are not proper subjects for determination in the suit. (Jones on Mortgages, sec. 1589; Wiltsie on Foreclosure, secs. 191,
192; McComb v. Spangler,
71 Cal. 418.) Whenever it is made to appear that the interest of a defendant is adverse or superior to that covered by the mortgage, the proper action of the court is to dismiss him from the suit.
(Ord v. Bartlett,
83 Cal. 428;
Code v. Bean,
93 Cal. 578;
Hoppe v. Fountain,
104 Cal. 94.) If, however, the plaintiff makes the holder of an adverse title a party defendant to the foreclosure suit, setting forth facts from which he claims that such title is subordinate to his mortgage, and issues upon these facts are presented for adjudication without objection on the part of the defendant, the judgment of the court thereon will not be void. The court may decline to pass upon the question as not germane to the suit for foreclosure, or it may determine that such claim of the defendant is unfounded, or that his interest in the premises is subordinate to the mortgage, or it may render a decree of foreclosure subject to the prior rights of such defendant. The subject matter of such controversy will be within the jurisdiction of the court, and, if the parties thereto submit the controversy to its determination, the judgment thus rendered will be as conclusive upon them as if rendered in an action specially brought for that purpose, and will not be subject to collateral attack.
(Helck v. Reinheimer,
105 N. Y. 470;
Goebel v. Iffla,
111 N. Y. 170;
Cromwell v. MacLean,
123 N. Y. 474.)
"Under the usual allegation in a complaint for foreclosure
that a defendant other than the mortgagor claims some interest in the premises, and that such interest is subsequent and subordinate to that created by the mortgage, any prior interest held by such defendant is not affected by the judgment therein. Such averment is not material to the plaintiff’s cause of action, nor is it an issuable fact, and whether the court rendered judgment upon the default of the defendant, or upon an issue created by his denial of this averment, without setting forth the character of his interest, any prior interest held by him is not affected by such judgment.
(Lewis v. Smith, 9
N. Y.
502
; Frost v. Koon,
30 N. Y. 428;
Smith v. Roberts,
91 N. Y.
470; Payn v. Grant,
23 Hun, 134;
Elder v. Spinks,
53 Cal. 293;
Sichler v. Look,
93 Cal. 600.)
It does not appear that in the foreclosure suit there was any adjudication upon the title of the plaintiffs which is set forth in the complaint herein, or that their claim that their interest in the mortgaged premises is superior to that derived under the mortgage was submitted to that court for determination, or was determined by it. The allegation in.the complaint therein that they claimed an interest in the mortgaged premises, and that this claim was subsequent and subordinate to said mortgage, did not present this issue for determination. The averment that their claim was “subordinate” to the mortgage was but a legal conclusion, and the allegation of fact upon which that conclusion depended—that the claim was subsequent to the mortgage—negatived any claim that it. was prior thereto. The answer of these plaintiffs was but a denial of these allegations, and their admission that they had an interest in said premises as purchasers was not only consistent with the allegations of the complaint and with the object of the foreclosure suit, but failed to present any issue upon a claim of title superior to that covered by the mortgage, or upon the validity of such title. Ho facts were alleged, either in the complaint or in their answer, by which an issue upon their title or claim was presented to the court or made a subject for its determination, and the oral statement of their attorneys to the court, and its finding and decree thereon that their claim and in
terest were “subsequent” and subordinate to said mortgage, is of no higher force than if made upon their default.
The demurrer should, therefore, have been overruled.
The judgment is reversed, and the superior court is directed to enter an order overruling the demurrer of the defendant, and giving to it a reasonable time within which to answer the complaint.
Van Dyke, J., and Garoutte, J., concurred.