Damon v. Leque

[254] The opinion of the court was delivered by Scott, J. Judgment went against the plaintiffs in this action on a demurrer interposed by the defendants to their complaint, on the ground that it failed to state a cause of action. The action purported to be one to remove a cloud from title. The complaint alleged, however, that one Iverson and wife, who were then the owners of the land in controversy, executed to the plaintiffs a mortgage thereon to secure the payment of $950 and alleged the foreclosure of such mortgage and a sale of the land thereunder to the plaintiffs; that after the giving of the mortgage, and prior to the institution of said foreclosure suit, said land was levied upon and sold under an execution issued on an ordinary money judgment against the Iversons, and a sheriff’s deed was issued in pursuance thereof, under which the defendants claim, and which was of record at the time said foreclosure action was commenced. The defendants were not made parties to the foreclosure suit, and, of course, their rights were not concluded in that action; but we are of the opinion that the complaint states facts sufficient to entitle the plaintiffs to a foreclosure of said mortgage as against the defendants, and for that reason the court committed error in sustaining the general demurrer thereto. If a plaintiff sets forth facts constituting a cause of action and entitling him to some relief, he is not to be turned out of court because he has misconceived the nature of his remedial right. Pomeroy, Code Remedies, §71. . Reversed and remanded for further proceedings. Dunbar and Anders, JJ., concur. Hoyt, C. J., dissents. GordoN, J., took no part.