60 Cal. 215 | Cal. | 1882
Lead Opinion
This is an action to foreclose a mortgage. The premises as described in the complaint consist of a triangular piece of land at the junction of Telegraph (University) avenue, Oakland, with the Lafayette road, fronting ninety-six and sixty one-hundredths feet on the avenue, and two hundred and twenty-six and sixty one-hundredths feet on the road. The answer of the defendant Pryal alleged that the mortgage was given to secure the payment of the purchase money; that plaintiff falsely and fraudulently misrepresented the boundaries and quantity of the land, in that he represented he was selling and had a right to sell a frontage on the avenue of ninety-six and sixty one-hundredths feet, when in fact he did not own such frontage or any greater frontage than fifty-six and sixty one-hundredths; that by reason of the shape of the piece of land, the taking off twenty feet front on the avenue, running back, the land became of no value; and the defendant averred that the consideration for the note had entirely failed.
The defendant offered and read in evidence the deed, which
There are three answers to the defendant’s proposition, viz: 1. The records of the Board of Supervisors were open to the inspection of the defendant, and he could have easily ascertained where the lines of the road were, and whether the road included any portion of the described land. 2. The plaintiff if he were the owner of it, had the right to sell, and the defendant to buy, the fee of the twenty-foot strip, subject to the easement of the highway. There could not, therefore, have been a failure of consideration, either as to that or as to the balance of the land. Each was of some value. 3. There was no offer to prove an eviction.
Another point is made. The mortgage contained the clause “ Counsel fees and charges of attorneys and counsel employed in such foreclosure suit not exceeding-.” It is claimed that this clause does not provide for counsel fees, and that the Court erred in awarding the same. We think the correctness of the action of the Court is apparent.
Judgment and order affirmed.
Ross, J., concurred.
Dissenting Opinion
I dissent. In an action to foreclose a purchase money mortgage, the mortgagor is entitled to set up as a defense, and to prove, fraud or misrepresentation in the sale and conveyance of the mortgage premises, without first averring and showing an eviction.
Unquestionably, it is true, as a general rule, that a mortgagor, in such a case, will not be allowed to interpose as a defense against foreclosure, want of title, or defect of title in the mortgagee. The rule of caveat emptor binds the mortgagor as vendee of the mortgage premises to see to the title which he acquires by his purchase, or to protect himself by covenants in his deed. Where his contract of purchase has been executed by a conveyance of the land, he must rely upon the covenants in his deed in case of eviction or loss. He can not, in an action to foreclose the mortgage given by him to secure payment of the purchase money, attack his grantor’s title, or show a defect in it, unless he has been evicted by paramount title. That is the general rule, but there are exceptions
“ It would,” says Chancellor Kent, in Gillespie v. Moon, (2 John’s Ch. 596; S. C., 7 Am. Dec. 559), “be a great defect in what Lord Eldon terms ‘ the moral jurisdiction of the Court,’ if there was no relief for such a case. * * * I have looked into most, if not all, of the cases on this branch of equity jurisdiction, and it appears to me to be established, and on great and essential grounds of justice, that relief can be had against any deed or contract in writing founded in mistake or fraud.”
The general rule and its exceptions are thus stated by the Supreme Court of Ohio. {Hill v. Butler, 6 Ohio St. 217.) “ In general, where the title fails, in whole or in part, a Court will decree a return of the purchase money, even after the purchase money has been paid, and a delivery of the deed containing covenants of warranty, provided there had been a fraudulent misrepresentation as to the title. (Edwards v. McLeay, Cooper’s Eq. 308; Fenton v. Browne, 14 Yes. 144.) But if there be no ingredient of fraud, and the purchaser is not evicted, or something equivalent to an eviction has not transpired, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase and claiming restitution of the money. The party is remitted to his remedies on his covenants to insure the title. (Abbott v. Allen, 2 Johns Ch. 519; S. C., 7 Am. Dec. 554; Edwards v. Bodine, 26 Wend. 109; Barkhamstead v. Case, 5 Conn. 528; S. C., 13 Am. Dec. 92; Maner v. Washington, 3 Strobh. Eq. 171.”
I think, therefore, that the Court below erred in excluding the evidence offered by the defendant to prove the defense of misrepresentation and fraud set up in the answer, and that the judgment ought to be reversed.
Concurrence Opinion
I concur in the affirmance of the judgment on the ground that the facts which the defendant.offered to prove would not constitute a defense to the action. He did not offer to prove either an actual or constructive eviction. The laying out of a highway through the premises did not amount to an eviction from any portion of the land. If all the proceedings of the Board of Supervisors had been valid and such as to vest in the public a paramount title, it might have amounted to an eviction. But there was no offer to prove that they were valid. Until that is shown there is no sufficient ground upon which to base a defense of a failure of consideration in whole or in part.
In my judgment there was no error committed by the Court below as to counsel fees. On the other point, I agree with Sharpstein, J,, and that the judgment and order should be affirmed.
