later the surveyor made the survey;

the

(38 Cal. App. 102)

plaintiffs accepted the survey and went into OCEAN SHORE DEVELOPMENT CO., Inc., possession of the tract as surveyed; the v. HAMMOND. (Civ. 2432.)

fornia. Aug. 28, 1918. Rehearing Denied by Supreme Court Oct. 23, 1918.)

CONFORMITY TO

1. JUDGMENT 251(1)
PLEADINGS-SCOPE OF RELIEF.

That the relief granted is not as broad as the pleadings is immaterial.

2. APPEAL AND ERROR 1073(1)—HARMLESS ERROR-JUDGMENT-FORM OF ACTION.

plaintiffs and the owner of the north half, (District Court of Appeal, First District, CaliLillie B. Gardner, immediately erected a fence on the line so run by the surveyor; "upon their acceptance by said plaintiff and said defendant Lillie B. Gardner of the tract of land so set part by the said survey as aforesaid, said plaintiff and said defendant Lillie B. Gardner understood and considered that it was not necessary for them to make new deeds of said tract of land so accepted by them aforesaid"; the plaintiff has made conveyances based on the said surveys, and the defendant Lillie B. Gardner has made conveyances based on the said surveys. The plaintiffs commenced this action by filing their complaint on March 24, 1914.

[3] It is clear from the foregoing statement of facts that all of the parties considered that a measurement was necessary. It likewise appears that a measurement was had. In the case of Young v. Blakeman, 153 Cal. 477, at page 482, 95 Pac. 888, 890, Mr. Justice Shaw, writing the opinion, says:

"If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds."

Silva v. Azevedo, 173 Pac. 929, affirms the rule in Young v. Blakeman, supra, and the facts in the Silva Case are so closely parallel to the facts in the case in hand that it would seem nothing more is necessary than

merely to cite that case.

[4] The pleadings put in issue the mutual mistake of the parties in framing and executing their deeds, and there was no error on the part of the trial court in receiving parol evidence. Code Civ. Proc. § 1856, subd. 1; Capelli v. Dondero, 123 Cal. 324, 330, 55 Pac. 1057. The trial court treated the cross-complaint as such and awarded relief accordingly, and it is necessary to modify its judgment. This can be done by striking from the judgment all matter commencing with the words, "Now, therefore" (where those words first appear in the judgment), and down to and including the words "parties respective

ly," where those two words last appear in the judgment and inserting instead the following:

"Now, therefore, it is by the court ordered, adjudged, and decreed that the plaintiffs are not the owners of or seised in fee simple of all that certain piece or parcel of land situate, lying and being in the county of Contra Costa, state of California, and more particularly described in paragraph 5 of the plaintiffs' second amended complaint."

Where court decided that action was for specific performance, and allowed amendment of pleading, after demurrer sustained, but amendment did not specifically pray for specific performance, though broad enough to authorize that relief, defendant was not prejudiced by a judgment not granting that relief, but giving the relief demanded by the facts, which was within the pleadings.

3. JUDGMENT 249 CONFORMITY WITH PLEADINGS AND EVIDENCE.

In code states courts will render such judgments as the evidence and pleadings warrant, regardless of the form of action.

4. VENDOR AND PURCHASER 273 CONTRACTS-ACTIONS-TENDER.

Where purchaser of land repudiated the contract, tender of the deed by the seller was not prerequisite to his recovery. 5. JUDGMENT 622(2)—MATTER AVAILABLE AS CROSS-COMPLAINT-FAILURE TO PLEAD.

While the matter of foreclosure of vendor's lien upon land was available as a cross-complaint in the vendee's action to recover amounts paid on account of alleged fraud, failure to interpose the same did not bar foreclosure of the lien, since Code Civ. Proc. § 442, as to crosscomplaints, is permissive only.

6. VENDOR AND PURCHASER 291—VENDOR'S

LIEN-DEFICIENCY JUDGMENT - POWERS OF

Court.

Assuming that Code Civ. Proc. § 726, as to deficiency judgments, applies only in case of inherent power, in foreclosing vendor's lien, to mortgage foreclosure, the court nevertheless has render a deficiency judgment.

Appeal from Superior Court, San Mateo County; Geo. H. Buck, Judge.

Action by the Ocean Shore Development Company, Incorporated, against J. P. Hammond. Judgment for plaintiff, and defendant appeals. Affirmed.

both of San Francisco, and Ross & Ross, of Joseph K. Hutchinson and Walter Slack, Redwood City, for appellant. Byrne & Lamson, of San Francisco, for respondent.

PER CURIAM. This action is based on a contract for the purchase and sale of three lots in San Mateo county. By the terms of the contract the defendant agreed to pay the plaintiff the sum of $2,125 as the purchase price of the lots, in installments as follows: Three hundred dollars on the signing of the

As so modified, the judgment should be af- contract, and the balance at the rate of $35 firmed; and it is so ordered.

We concur:

per month thereafter until paid; the title to the property was to remain in the vendor until LENNON, P. J.; BEASLY, the installments were paid. The defendant paid the sum of $300 on the signing of the

Judge pro tem.

contract and the first installment of $35. No, of excusing a tender of a deed, that defendfurther installments were paid. At the time ant had repudiated the contract. At the of the commencement of this action, 46 in-close of plaintiff's case, the defendant moved stallments, amounting to the principal sum of for a nonsuit; the motion was denied. The $1,610, had become due under the contract. defendant then offered to prove the facts alThe balance of the installments, amounting leged in his "third" and "fourth" defenses to $180, had not yet become due. concerning the alleged false representations made by plaintiff to defendant about the character of the property. The court sustained the plaintiff's objection thereto, for the reason that the judgment rendered

of Hammond v. Ocean Shore Development Co. operated as an estoppel by judgment with regard to those matters. Judgment was thereafter rendered against the defendant, and in favor of the said plaintiff, by which it was decreed that the plaintiff has a lien upon the real property for the sum of $2,123.41, together with costs that the property be sold to satisfy said lien, and that a personal judgment for the deficiency, if any, then be docketed against the defendant. The defendant appeals, and advances many arguments for a reversal of the judgment.

[1-3] One of the questions raised by defendant is whether this is in effect an action for specific performance; or whether this is an action to foreclose a vendor's lien. We think that this was not an action for specific performance. The original complaint stated an action on contract for the amount of the unpaid installments, and asked for a foreclosure of a vendor's lien upon the land. At the trial the defendant interposed a demurrer and argued that the complaint was analogous to one to enforce specific performance, and that facts sufficient to constitute such a cause of action had not been pleaded. The demurrer was sustained, and the plaintiff amended

This action was brought to foreclose a lien which the vendor had on the property for the purchase price. A demurrer to the complaint was sustained, and an amended complaint filed. The plaintiff asked that the property against the defendant herein in the action be sold to satisfy the amount then due, namely, $1,821.15, and that, if the proceeds of the sale were insufficient to satisfy the amount of said lien, then that a personal deficiency judgment be docketed against the defendant. The defendant answered the amended complaint, and, after denying certain allegations therein, set up four separate defenses, numbered and referred to as "second," "third," "fourth," and "fifth" defenses, respectively. The "fifth" defense was conceded by the plaintiff, and the contract reformed in accordance therewith, and need not concern us here. The "second" defense recited that, prior to the commencement of this action, the defendant in this action commenced an action in the superior court of the state of California in and for the county of Mono against the plaintiff herein, entitled "J. P. Hammond, Plaintiff, v. Ocean Shore Development Company, Incorporated, a Corporation, Defendant," in which said Hammond sought to recover from the said Ocean Shore Development Company, Incorporated, the sum of $335 paid under the said contract upon the ground of fraud and false representations made to him by the said Ocean Shore Development Company, Incorporated, concerning the character and situation of the property; its complaint by adding an allegation that that the Ocean Shore Development Company failed to set up in its answer any counterclaim for damages, or for the purchase price of the property, or any of the installments thereof. The "third" defense set up a failure of consideration, and then set forth as a reason for said failure certain alleged false representations made by Ocean Shore Development Company to the said Hammond, which induced the said Hammonu to enter into the said contract, and which said alleged false representations were substantially the same as set forth in the complaint previously filed in Mono county by Hammond. The "fourth" defense simply sets forth the same alleged false- We think a return to such position is not representations concerning the property, necessary to sustain the judgment. Neither and the fact of a rescission of the contract the prayer of the amended complaint nor of by the defendant based upon such alleged the supplemental complaint is for specific misrepresentations. performance; the decree was not given for

the price to be paid for the land under the contract was not disproportionate to the value of the land. In support of this ailegation, the plaintiff introduced evidence of the market value of the land. The defendant contends that as the trial court, in ruling on the demurrer to the original complaint, determined that the action was substantially one for specific performance, and respondent voluntarily adopted the trial court's theory, and amended its complaint in accordance therewith, it cannot on appeal return to the position that the original complaint was suf ficient.

On April 14, 1916, the balance of the in-specific performance, and therefore could stallments under the contract having fallen not have been rendered upon the theory that due, the plaintiff filed a supplemental complaint, setting forth that fact, and an amended supplemental complaint was thereafter filed by permission of the court obtained at the time of trial, and which alleged, by way

the plaintiff was entitled to such relief. But admitting that the allegations of the amended complaint were framed to state a case for specific performance, and that the court might have so decreed, yet the plaintiff asked and

received of the court a relief that was clearly within the pleadings and therefore the defendant is not prejudiced. In code states, courts will render such judgments as the evidence and pleadings show the parties entitled to regardless of the form of action. Lee v. Coon Rapids Nat. Bank, 166 Iowa, 242, 144 N. W. 630.

[4] The defendant contends that the tender of a deed was a condition precedent to plaintiff's right of recovery, and that there is no proof of such tender. We think the failure to tender a deed was excused by defendant's repudiation of the contract, which repudiation and attempted rescission was fully set out in the "fourth" defense of defendant's answer.

In one of the cases relied upon by the de- Ehrhart v. Mahony, 170 Cal. 148, 148 Pac. fendant in support of his contention (Wood-934.

son v. Metropolitan St. R. Co., 224 Mo. 685, 123 S. W. 820, 30 L. R. A. [N. S.] 931, 20 Ann. Cas. 1039), the court said:

"But, further, an instruction cannot be broader than the pleadings, although the facts may take a wider range; nor, on the other hand, can the instruction be broader than the facts proven, although the pleadings may take a broader range." Degonia v. Railroad Co., 224 Mo. 589, 123 S. W. 807.

[5] The defendant argues, further, that as a portion of the installments under the contract was due at the time when the action for rescission of the contract was filed by defendant herein, in Mono county, the plaintiff herein, as defendant therein, was obliged to set up such installments as a counterclaim or lose his right to sue thereon. The case of Mackenzie v. Hodgkin, 126 Cal. 591, 59 Pac. 36, 77 Am. St. Rep. 209, holds that similar matter is matter for cross-complaint and within the meaning of section 442, Code of Civil Procedure. This section is permissive, and does not require matter of

If the pleadings take a broader range than the facts proven, the court surely has power to give judgment for any relief to which the proof entitles the plaintiff; and where a party proceeds upon the theory that his relief is in equity, but fails to state sufficient cross-complaint to be set up, under penalty facts to entitle him to equitable relief, he will be given the relief to which he appears to be entitled. If the plaintiff is entitled to a money judgment, a money judgment will be rendered. Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.

of a forfeiture of the right to sue thereon. However, we think that a discussion of the distinction between counterclaims and crosscomplaints becomes unnecessary here, for the reason that the plaintiff was clearly entitled to wait until the entire amount to be paid under the contract was due and payable before suing, and therefore he was not required to set up as a counterclaim the amount due at that time.

[6] Finally, it is defendant's contention that the judgment is erroneous because, if the action is to foreclose a vendor's lien, the court must decree a strict foreclosure, and therefore a deficiency judgment is improper. Admitting, as contended by defendant, that the statutory provisions for the entry of a deficiency judgment in mortgage foreclosures, contained in section 726 of the Code of Civil Procedure, do not apply to vendor's liens, yet we think that the court had inherent powers sufficient to enable it to enter such a judgment without any express statutory authori

Therefore, conceding that plaintiff did amend his complaint to state an action for specific performance, the court had power to grant any relief within the pleadings, which we think it has done in the judgment rendered. The cases cited by the defendant are in support of the proposition that where a trial court adopts a certain theory of a case, and renders judgment upon that theory an appellate court will not consider a different theory of the case, in order to sustain or reverse the judgment, and that judgment must stand or fall upon the theory upon which it was rendered. In this case, however, the court did not enter a judgment for specific performance, and we are not called upon either to sustain or reverse such a judgment. The judgment was for the unpaid purchase price ty. of the land and for a foreclosure of the ven- The plaintiff clearly had a right under his dor's lien; the facts proven entitled the plaintiff to such a judgment, and that the pleadings may have been somewhat broader, we think, is immaterial.

Whether the action is one for specific performance or not, the judgment in the case of Hammond v. Ocean Shore Development Co. acted as an estoppel upon the defendant so as to prevent him from introducing evidence upon his "third" and "fourth" defenses, and therefore the objection of the plaintiff to the introduction of evidence on these matters was properly sustained.

contract to sue for the full purchase price of the land and he also had a right to foreclose the lien. Under our system of procedure, it cannot be said that, after foreclosing the lien, it would be necessary for him to bring another action at law in order to collect the amount still due him under the contract. The court had general legal and equitable jurisdiction, and had authority thereunder to do full and complete justice in the one action, and we think this has been done by the judgment rendered.

The judgment is affirmed.

BUDGE, C. J. The transcript on appeal was filed on December 28, 1916. No brief has ever been filed or served by the appellant. The case falls within rule 48 (153 Pac. xiv) | (Supreme Court of Oregon. of the rules of this court. We have examin- 1. JUDGMENT 585(4) - CONCLUSIVENESS ed the record for fundamental errors, and have found none.

RES JUDICATA-MATTERS CONCLUDed. Facts identical with those relied on as a cross-complaint in a prior suit, wherein the comThe judgment of the trial court is affirmed. plaining party drew up the decree, held con

accrued interest, and taxes; that, just prior to the execution of the aforementioned con

pany of Oregon, to make, execute, and deliver a good and proper deed of conveyance of said veyance, they were served with copies of the be so executed by said American Bank & Trust real estate to the plaintiff; but such deed, to summons and complaint in the foreclosure Company and Will Wright as superintendent of suit, and that Richardson then represented to banks, was to be held by these defendants until them that the suit was merely a step in the such time as the plaintiff might find a purchaser for said property, so that, upon making a sale, process of clearing the title to the premises, the plaintiff could be in a position to convey and would not affect their rights thereto; that the said lands to such purchaser; but said deed he now asserts title to the property through was not executed by said American Bank & Trust Company of Oregon and Will Wright. the conveyance to Edith King, who, it is as-superintendent thereof, until the 25th day of serted, holds the title for his convenience. June, 1912, seven days after the execution of They then allege the falsity of the represen- the deed by these defendants to Edith King, the țations so made, and their reliance upon purchaser of said premises, as hereinafter menthem, and conclude with the following prayer: "Wherefore these defendants and cross-complainants pray that this court will decree: "(1) That these defendants and cross-complainants, Emma A. Smith and Mary J. Cole, are the owners in fee simple of said premises. "(2) That said plaintiff and Edith King hold the legal title so vested in them as security only for the repayment of said $2,000, interest and taxes, if any, paid by them.

"(3) That, should the court find that said plaintiff is the owner and holder of the note and mortgage set out in his complaint, the transfer of said note and mortgage to him, together with the conveyance to him by said Bank & Trust Company and the conveyance by these defendants to Edith King, constitute but one instrument, intended as, and declared to be, a mortgage to secure the payment of said new loan agreed to be secured by said plaintiff, and that the amount of said new loan be decreed to be the principal amount represented by note and mortgage set out in plaintiff's complaint, plus the interest due thereon, plus the taxes paid, if any, plus the said $2,000 paid defendants by plaintiff, and that the terms of said new loan run three years from June 18, 1912, with interest at 8 per cent. per annum, and that plaintiff be denied the right to foreclose said mortgage set out in his complaint at this time and his suit dismissed.

"(4) That the rights and interests of said purchasers be fully protected as their respective equities may appear; and to reform said instruments.

"(5) That said defendants L. D. Mahone, W. Bullis, M. L. Hamitt, Mrs. J. F. McKinney, W. G. Bohn, American Bank & Trust Company, and Will Wright, superintendent of banks, G. A. Schwartz, and cross-defendants Quarts Gold Mining Company, a corporation, and F. P. Tobin, receiver of Mount Scott Bank, a corporation, have no right or interest in or to said premises.

"(6) That these defendants and cross-complainants be given such other and further relief as may appear just and equitable in the

premises."

"(1) That prior to the time the plaintiff purchased said note and mortgage, he had informed these defendants that he was intending to purchase the same, and notified them that he would foreclose said mortgage unless the interest was paid, whereupon said defendants said they could not pay the interest, or make any payment thereof, but urged the plaintiff to find a purchaser for their interest in said premises, and in order to make suitable provision for the execution of a deed of conveyance to such purchaser as the plaintiff should find for said premises, on or about the 12th day of June, 1912, said defendants authorized the American Bank & Trust Company of Oregon, and Will Wright, superintendent of banks, in charge of the liq

tioned.

"(2) That after authorizing the American Bank & Trust Company and Will Wright, superintendent of banks, in charge of liquidation of said bank, to execute said note of conveyance to the plaintiff, said defendants Emma A. Smith and Mary J. Cole, together with one Thomas H. Ruddy, their attorney in fact, repeatedly called upon the plaintiff and urged him to find some one who would be willing to buy their interest in said property; and in accordance therewith the plaintiff procured a purchaser, namely, Edith King, who was willing to pay said defendants the sum of $2,000 for all their right, title, and interest in and to said premises, subject to the mortgage thereon. That after finding said purchaser the plaintiff discovered that these defendants had not conveyed the property belonging to them and described in said mortgage to said American Bank & Trust Company, and informed the defendants that, in addition to the deed so authorized by them to be made by the American Bank & Trust Company of Oregon and Will Wright, superintendent of banks, in charge of liquidation of said bank, the said Edith King would require a deed of conveyance direct to her from these defendants, and in accordance therewith, and with a full knowledge of all the facts and circumstances, and with the advice of their attorney, Thomas H. Ruddy, said defendants on the 18th day of June, 1912, executed and delivered to said Edith King their deed of conveyance of said property, conveying to her all their right, title, and interest in and to said property and every part thereof for the consideration of $2,000, which was then and there paid to them by the said Edith King."

Thereafter a trial was had, resulting in a decree of which the following is a part:

"(4) That the deed made by Emma A. Smith, Mary J. Cole, and Chester Cole on the 18th day of June, 1912, to defendant Edith King, now Edith Richardson, which deed on the 19th day of June, 1912, was recorded in Book 590, at page 144, Records of Deeds of Multnomah County, be and the same is hereby set aside; and

"It is further ordered, adjudged, and decreed that the plaintiff and the defendant Edith Richardson convey to the said Emma A. Smith and Mary J. Cole all right, title, and interest_conveyed to plaintiff by the said American Bank & Trust Company, and by plaintiff conveyed to defendant Edith King, and also all right, title, and interest conveyed to defendant Edith Richardson, and also all right, title, and interest conveyed to plaintiff, conveyed to defendant Edith King, and also all right, title, and interest conveyed to defendant Edith Richardson, by a deed made on June 18, 1912, when the said