Trope

Ejectment for a lot of land in Salinas City. Judgment went for plaintiff, and defendant appeals upon the judgment roll.

Plaintiff claimed title through the foreclosure of a mortgage executed to him by defendant, which included the said lot. Plaintiff was the purchaser at the sale under the decree of foreclosure, and the time for redemption having expired, he received a sheriff’s deed for the premises.

1. Defendant, in addition to a denial of the averments of the complaint, made a plea in abatement founded on the point that as plaintiff might have had a writ of assistance in the foreclosure suit, therefore he cannot 'maintain ejectment. This point is not tenable. A writ of assistance is a summary proceeding which a plaintiff may sometimes advantageously avail himself of; but such proceedings are not res adjudícala as to many questions that may arise; and a right to the writ does not deprive a party of the fuller remedy afforded by an ordinary action. The cases cited by appellant are not in point; *555 and we have been referred to no case which restricts a party to a writ of assistance.

2. Defendant filed a cross-complaint, which stated certain facts upon which he contends the…