#### Campbell v. Wambole et al.

1. practice: demurrer: good cause op action as to one op several depen-dants. Where the complaint, in an action to reform and foreclose a mortgage against several defendants, states a good cause of action against any one of such defendants, a general demurrer by all the defendants should be overruled.

*Appeal from the District Gourt of Yankton Gownty.*

*184Demurrer to complaint. The substance of the pleadings is stated in the opinion.

*Tripp*and Boyles, for appellant.

Points and authorities cited:

This is a general demurrer by all the defendants, and if the complaint states a cause of action against one of the defendants the general demurrer must be overruled: *Burin v.*Gibson, 4 N.W. Rep., 244, S. C., 9 Neb., 513; *Mis. Valley Land Go. v. Bushnell,*8 N. W. Rep., 389; *Willard et al v. Reas et al,*26 Wis., 544; *Webster, Admr., v. Tibbets,*19 Wis., 438; *Brovmson v. Gifford,*8 How. Pr., 389; *Phillips et al v. LLagadon et ux,*12 How. Pr., 17; *Eldredge v. Bell,*12 How. Pr., 547; *People v. Mayor Mew Yorh,*17 How. Pr., 56; 17 Ind., 291-3.

Plaintiff declares upon the promissory note of Wambole, and asks a personal judgment against him. It is too late in the history of Code practice to say this is a suit in equity, and equitable relief being desired, the cause must be dismissed and the party sent to the law side of the court.

Again, Charles Wambole is a pax-ty to the mortgage. The mortgage nor complaint do not state what his interest is ixx the mortgaged premises, but whatever it is we have a right to foreclose it at least — not only what his interest was at the execution of the mortgage, but any after acquix-ed interest in the mortgaged premises: Civil Code, Sec. 1727.

It is stated in the complaint that the heirs have succeeded to the ixxterest of Elizabeth Wambole in the mortgaged premises. Charles Wambole as husband, under oxir law, would take a one-third interest as heir of the wife. Whatever her interest may have been, that interest inures to the benefit of this plaintiff iix like manner as if acquired before execution of the mortgage: *Parry v. Kelly,*52 Cal., 335.

Under our statute both real and personal property pass direc *185to the heir, subject to being subsequently applied to payment of debts: Sec. 777, Civil Code; Secs., 122,-128, 163, 272, Probate Code.

In California the real and personal property pass in the first instance to the administrator as trustee for payment of debts, and to the heir on distribution of the estate: Cal. Civil Code, Sec. 1384, and note. Put this gives the administrator a possessory interest, and a right under order of Probate Court, to sell property for payment of debts, and no further interest or powers: *Brenham v. Story,*39 Cal., 179. If no debts there need be no administration: *Barry v. Kelley,*52 Cal., 334.

*N. J. Cramer,*for respondent.

Points and authorities cited:

All the defendants, including Charles Wambole, succeeded to the lands sought to be reached in this action, as heirs of Elizabeth Wambole, deceased. But the administrator of the estate is entitled to possession of such lands during administration, and the interest of such heirs requires the joinder of the administrator as a party to this action. Will the court reform a mortgage when a party entitled to possession of the premises is not before the court? Civil Code, Sec. 777; Prob. Code, Secs. 122* 123, 162, 210, 211; *Hillman v. Hillman,*14 How., 460; *Hewbcmld v. Warren,*14 Abb., 80; *Wallace v. Eaton,*5 ITow., 90; *Berlcins v. Glvwrch,*31 Barb., 84; *Harwood v. Marye,*8 Cal., 580; *Belloch v. Boyers,*9 Cal., 123; 2 Barb. Ch. Pr., 176; 2 Wait’s Prac., 449; 2 Jones on Mort, 1414.

Edgerton, C. J.

This was an action brought in the Second Judicial District Court for the county of Yankton to reform and foreclose a mortgage on certain real estate, which mortgage was made and executed by Elizabeth Wambole, together with the defendant, Charles Wambole, her husband^ to the plaintiff, to secure *186the payment of a promissory note máde by the mortgagors, of that date, to the plaintiff. The complaint further alleges- *dnter alico,*that there was a mistake in the description in the mortgage; and that “on the 21st day of December, 1879, the said Elizabeth “ Wambole died intestate; that the defendants are sole heirs of “ said deceased, and have succeeded to the estate and interest of “ said Elizabeth Wambole in said mortgaged premises, and are “ now the owners and holders thereof, and that no other person “ has, or claims to have, any title or interest in or to the same, to “ the knowledge of this plaintiff; that said defendants, Josephine “ Wambole, Elizabeth Wambole and James Arthur Wambole, are “ minors; that on the 3d day'of May, 1880, the defendant, Charles “ Wambole, was duly appointed guardian of the persons and estates “ of said minor heirs of said Elizabeth Wambole, 'deceased.”

And the plaintiff further states, “ That the said Elizabeth Wain- “ bole, deceased, did not in her life time, nor has the defendant, “ Charles Wambole, or the heirs of said deceased, or any or either “ of them, complied with the conditions of said mortgage, or note, “ by paying the said sum of twenty-two hundred dollars, with “ interest, as therein specified, which became due and payable on “ the 25th day of August, 1879; but that the whole remains due *“ and unpaid.”

“ The plaintiff therefore demands judgment:

> “ *1st.*— That .said mortgage may be reformed and the description “ amended as aforesaid.

> “ *2nd.*— For the amount of principal and interest whieh may be “ found due to the plaintiff on said note and mortgage at the date “ of such judgment, and costs and expenses of this action.”

“ And the defendants and all persons claiming under them, subse- “ quent to the commencement of this action, may be barred and “ foreclosed of all right, claim and equity of redemption in the said “ mortgaged premises and every part thereof; that the said premises *187££ may be decreed to be sold according to law; that out of the mon-£c eys arising from the Bale the plaintiff may be paid the amount ££ adjudged to be due him on said note and mortgage, with interest ££ to the time of sueh payment, and costs and expenses of sale, so far £-£ as the amount of such moneys, properly applicable thereto, will ££ pay the same; and that the defendant, Charles Wambole, may be £‘ adjudged to pay any deficiency which may remain after applying ££ all of said moneys so applicable thereto; and that the plaintiff ££ may have such other and further relief in the premises as shall ££ be just and equitable.”

To this complaint the defendants demurred. The demurrer was brought on for a hearing, and the Court—

££ *Ordered,*That said demurrer be sustained, and that said de- £< fendants have judgment thereon with costs;” and judgment was thereupon entered in favor of defendants and against the plaintiff.

It is admitted that the demurrer should have been overruled in this case, provided the complaint states a cause of action against any one of the defendants.

The complaint alleges that the defendant, Charles Wambole, was one of the makers of the mortgage, and also one of the makers of the promissory note which the mortgage was given to secure. 9

By the Civil Code of the territory, whatever interest or estate in the property described in the mortgage, or any portion of the same, the defendant, Charles Wambole, had in his own right at the time this suit was brought, whether acquired before or after the mortgage was given, was subject to this mortgage, and could be foreclosed. Sufficient appears by the complaint, if true, to show that this defendant had such an interest or estate in the lands mortgaged at the time this suit was commenced.

And again, the complaint further shows the defendant, Charles Wambole, was one of the makers of the note, and consequently was liable thereoh.

*188The defendant, Charles Wambole, at least, is not in a situation to demur to this complaint. It is therefore unnecessary to review or pass upon the other questions presented on this appeal.

The judgment of the District Court is reversed and the case remanded.

All the Justices concurring.