Action to enforce the lien upon real estate created by a contract entered into by plaintiff and her husband to live separate and apart. Plaintiff had judgment, from which defendant appeals. The record is here on bill of exceptions.
On April 9, 1891, plaintiff and her husband, H.M. Higgins, entered into an agreement to live separate and apart, and H. agreed therein to pay plaintiff a certain annuity during her life, payment to be in definite installments. By the terms of the agreement the sums agreed to be paid were made a lien on the real estate of H. On April 24, 1895, H. mortgaged his real estate to defendant. On December 1, 1896, he being in default on his contract with plaintiff, she commenced an action to foreclose her lien. Defendant in this action appeared and answered, and by cross-complaint in that action sought the foreclosure of its mortgage. A decree was entered foreclosing defendant's mortgage, and also foreclosing plaintiff's contract for the amount then due thereon. Defendant caused the property to be sold under the decree in its favor, subject to the lien of plaintiff, became the purchaser and obtained a deed prior to the commencement of this present action. The decree in the foreclosure action referred to above was affirmed here on appeal. (Higgins v. Higgins, 121 Cal. 487.1) After the sale to defendant, plaintiff, under the decree, sold a portion of the land described in defendant's mortgage.
On October 6, 1898, plaintiff commenced this action, alleging that there had become due under the terms of the separation contract the sum of eleven hundred and twenty-three dollars and fifty cents, making the bank, as the purchaser subject to her lien, the sole defendant. In the complaint the entire proceedings in the first action are set forth. *Page 186
1. Appellant made a motion to strike out all this matter as redundant and unnecessary and irrevelant. We find the same difficulty here which has often been pointed out by the court, to wit, failure to identify in the transcript the portions of the pleading referred to in the motion. What was plain enough to the trial judge when the motion was made is obscure and uncertain here, because a reference to the manuscript pleadings, by page and line, does not identify the printed transcript. Conceding, however, that the matter in the complaint and in the supplemental complaint attempted to be referred to was unnecessary, it does not follow that the refusal to strike it out is sufficient ground for reversal of the judgment. The cause was tried upon its merits, and it appears that no substantial right was affected by the ruling of the court. In such case the judgment will not be reversed. (Sloane v. Southern Cal. Ry. Co., 111 Cal. 668.) In the cases cited by appellant the rule was correctly stated to be that immaterial matter appearing in a complaint should be stricken out as irrelevant. But the cases cited do not suggest that the refusal of the court to follow this very proper rule is necessarily prejudicial error.
2. Appellant complains that certain findings were unnecessary because they follow certain allegations of the complaint, which are not denied; and it is claimed that these findings were inserted for the same reason that the complaint and supplemental complaint contained unnecessary matter, to wit: "To make it so burdensome upon appellant to appeal that it would be deprived of that resort for the correction of errors." It is true that undenied allegations in the complaint require no findings, as has been often held, but it is not error to make such findings. We cannot assume that the findings complained of were purposely made burdensome from the fact that they were immaterial or unnecessary.
3. It is claimed that the action was unnecessary and contrary to the provisions of section 728 of the Code of Civil Procedure. (Citing Bank of Napa v. Godfrey, 77 Cal. 612.) The contention is that there had already been one action on the contract, and plaintiff should have proceeded by motion in that action for an order to sell to satisfy the amounts falling due since the first action was brought. Section 728 provides *Page 187 that where "the debt for which the mortgage, lien, or encumbrance is held is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterward, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold." It was held in McDougal v. Downey, 45 Cal. 165, where a mortgage was given to secure the payment of money on a contract not unlike the one here, and the mortgage was foreclosed as to one of the installments that became due, that a second suit could be maintained notwithstanding the former action. The reason given was that the demand for which the second action was brought had not arisen when the first action was commenced; that its amount had never been judicially ascertained, and no relief could be had under the provisions of section 248 of the practice act, which was the same as section 728 of the Code of Civil Procedure. In the Bank of Napa case, relied on by appellant, there was a foreclosure for that part of the principal and interest of the note which at the time had become due; the court in its decree adjudged that there were certain installments of interest to become due at periods stated, and also that the principal would be due at a stated period, and the decree made provision "that hereafter as more shall become due, according to the terms of said note and mortgage, and remain unpaid, the plaintiff may apply to the court for a decree that more of the mortgaged premises be sold to satisfy the same." There was an adjudication of the amounts yet to fall due and provision made in the decree for the plaintiff to apply to the court for further sale of the property. It was held here that the decree was proper, and that the proper practice is in such a case, when further installments of the debt fall due, to file a motion in the case reciting the proceedings therein, alleging that other installments have become due, and asking for a sale of the property. In the case ofHiggins v. Higgins, supra, the court at that trial did not determine that any sums would be due in the future under contract, and no provision was made in the decree for any future sales of property to meet installments yet to become due. *Page 188
We do not think in such a case the mortgagee is compelled to resort to a motion, under section 728, supra, nor, indeed, would it be proper for him to do so. (McDougal v. Downey, supra.) But where in the decree provision is made for future sales to enforce payments which the court has in its decree determined will be due in the future, the simpler and less expensive mode of procedure is as provided by section 728, supra, and as approved in Bank ofNapa v. Godfrey, supra. The course pursued in the present action we think the proper practice.
It is advised that the judgment be affirmed.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Van Dyke, J., McFarland, J., Garoutte, J.
1 66 Am. St. Rep. 57