Los Angeles herald., 1892-06-21
TWO DECISIONS,
Important Points on the Law
Of Mortgages.
Lankershim Protest Against Widen.
ing Broadway.
Moir vs. Niles ct al.-Judge Wade'f
Opinion-The Question of Widen
ing Broadway In Point.

Judge Wade of the superior court yes.
terday handed down an important de-
cision in regard to the law on mortgages.
The opinion is in the case of Moir vs.
Niles ct al. The Judge says:
This is an action to foreclose mort
gage which contains a manifestly erron-
eous description of the mortgaged prop
erty, and plaintiff, after setting up the
error in description asks to have it re-
formed, to the end that the decree ol
foreclosure may describe the land in
tended to be conveyed by the mortgage
and no more. The property intended to
be mortgaged was subsequently con-
veyed to the defendant Nydia
Starr Niles for nominal con-
sideration, who now claims it as a
homestead. The only question discussed
in the briefs is whether plaintiff can in
this action have this erroneous descrip-
tion corrected as against the homestead
claimant.
Defendant argues the question as
though the correction proposed created
the mortgage. If this mortgage is a
valid incumbrance, it is because it has
been go from the beginning. The deed
by which the property was transferred
to the homestead claimant calls for some
of the same boundaries as those indi-
Gated in the stipulations and the mort
gage. These calls are of such charac-
ter as to indicate beyond doubt that the
purchaser took with notice OF the mort
gage, and the mistake may be corrected,
not for the purpose Of creating an in
cumbrance, but merely for the purpose
of conforming it's recitals to the inten-
tions of the parties. Judgment for the
plaintiff as prayed for.
LANKERsHIM VS.. THE CITY.
The demurrer to the complaint was
overruled in the somewhat celebrated
suit Of Lankershim against the city of
Los Angeles by Judge Clark yesterday.
The opinion filed by the judge is given
below:
Demurrer to complaint to enjoin the
defendants, the city offLos Angeles and
the street superintendent thereof, from
taking certain action in the matter of it's
opening, widening and extending of
Fort street or Broadway, in said city,
under the provisions of the act ap-
proved March 6, 1889.
The objection that the bill is multi
farious cannot, think, be sustained.
The weight of authority would seem to
establish the rule that a number of
plaintiffs owning separate and segre-
gated parcels of land may be joined as
such in an equitable suit to prevent a
cloud being cast upon their titles where
the cloud threatened is the same cloud,
created by the same proceedings and
where multiplicity of actions can
thereby be avoided.
The complaint, among other material
allegations, which for the purpose of
demurrer must be taken to be true, al
leges that the superintendent of streets
did not post or publish notice of the
passage of the ordinance or resolution of
intention, as required by the third Sec
ton of such act. and that the objections
of certain of the plaintiffs and parties
interested were overruled by the city
council without the objectors having an
opportunity to be heard and without the
service of the notice required by section
4 of said act, which notice was necessa-
ry to give the city council jurisdiction.
These allegations, without mentioning
others, sufficiently meet the general de-
murrer.
Defendants with their demurrer file
an answer duly verified. The rule is
that on the coming in of duly verified
answer denying all of the equities of the
bill the court should, upon motion, dis
solve a temporary injunction granted,
unless the bill be supported by addi-
tional affidavis. This rule applies a
fortiori where the effect of the tempo
rary restraining order is to prevent or
delay public improvements. I am at
present inclined to the opinion that the
answer denies all of the material allega.
tions of the complaint, but no motion to
dissolve the injunction has yet been
made. The demurrer is overruled.