White

The relief granted by the court below in this canse appears to be somewhat broader than the pleadings, when properly interpreted, warrant. The case as made therein and as shown by the evidence is an action in equity to enjoin an execution sale upon the ground that the judgment underlying it was procured by fraudulent conduct on the part of the judgment creditor and as a result of such fraud, pecuniary damage has resulted to plaintiffs in excess of the said judgment. The complaint also tenders the issue that the levy, if otherwise legal, is ineffective because the property affected thereby was theretofore and then impressed with a valid homestead and for that reason exempt. This latter issue, however, need not be discussed in view of our views upon the former.

The facts necessary to this discussion are: That plaintiffs were the owners and mortgagors of a lease and furnishings of a hotel in Sacramento, the defendant Kindblom being the mortgagee. The mortgage amounted to approximately the sum of $4,124.50. A foreclosure in the Superior Court of Sacramento was had. A sale was ordered and was being conducted when this occurred: The mortgagors were present and prepared on behalf of…