63 P. 844 | Cal. | 1901
Suit to quiet title. Each party to the action claims title to the land in controversy under the Eagle Lake Land and Irrigation Company, a corporation — the plaintiff by virtue of a sheriff's deed under two judgments rendered against the corporation, and the defendant by virtue of a sheriff's sale under a judgment foreclosing a mortgage executed by the corporation. Judgment was rendered in favor of the defendants, and plaintiff has appealed.
The plaintiff obtained a judgment against the corporation upon a money demand, June 13, 1893, and at the sheriff's sale under an execution issued thereon, purchased the lands described in the complaint herein on February 23, 1894, and the sheriff's certificate therefor was delivered to him and recorded March 5, 1894, and the deed thereon, August 24, 1894. Charles Hartson obtained a judgment against the corporation July 14, 1893, and at the sheriff's sale under an execution issued thereon purchased the same lands and received the sheriff's certificate therefor, which was recorded February 19, 1894. The sheriff's deed upon this certificate was executed to the plaintiff December 21, 1894, by virtue of an assignment of the certificate to him made by Hartson, March 29th. May 24, 1892, the corporation executed a mortgage upon the lands to the defendant Purser. This mortgage was filed for record in the office of the county recorder on *555 November 22, 1892, and was recorded in book "A" of "Bills of Sale and Agreements." March 26, 1894, Purser commenced an action to foreclose this mortgage, making Cady and Hartson defendants therein. Judgment was thereafter rendered in this action for a sale of the mortgaged premises in satisfaction of Purser's claim, but declaring that "said foreclosure sale shall be without prejudice to any and all prior and paramount rights of the said defendants, except the defendant Eagle Lake Land and Irrigation Company." At the sale under this judgment Purser purchased the lands, and afterward received a sheriff's deed therefor.
1. Under the foregoing facts it must be held that at the time the plaintiff and Hartson purchased the lands at the sheriff's sale, they did not either of them have any notice of the mortgage from the corporation to Purser. Whether subsequent purchasers or mortgagees are charged with constructive notice of the contents of an instrument that has been filed for a record in the recorder's office, notwithstanding such instrument is afterward incorrectly or improperly copied into the books kept therefor, has been decided differently in different states, but it was held at an early day in this state, and must be regarded as a settled rule, that they have constructive notice of only such matters as appears from the instruments as copied into the proper books. InChamberlain v. Bell,
The provisions in section
By section 124 of the County Government Act as it stood at the time of these transactions (Stats. 1891, p. 324), the recorder was required to "record separately in large and well-bound separate books" the several instruments there named, and section 130 provided that when any instrument was deposited in his office for record, he "must record the same without delay." By section 125 the recorder is required to keep indexes to the several instruments, among which are two indexes labeled, respectively, "Mortgagors of Real Property," and "Mortgagees of Real Property," with the pages divided *558
and so headed as to show the parties and date and place of record of each mortgage. In addition to this, section
It is immaterial that the corporation's title to the premises did not appear of record in the recorder's office. The provisions of the recording act are not limited to titles which appear of record, but are applicable as well to those which exist by virtue of prescription. The possession of the land by the *559 corporation at the time of the sheriff's sale was prima facie evidence of its title.
2. The rights acquired by the plaintiff under the sheriff's sale were not affected by the judgment in the action of Purser for the foreclosure of his mortgage, or by the sale under this judgment. By virtue of the provisions of section
It has been stated in several cases that the effect of a sale under a judgment in foreclosure is to transfer to the purchaser the title of the mortgagor as it existed at the date of the mortgage, and that in an action for its foreclosure the rights of defendants which were acquired subsequent to its date are extinguished by such sale; and it is contended by the respondents that, as the rights of the plaintiff herein were acquired subsequent to the execution of the Purser mortgage, and as he was a defendant in the suit for its foreclosure, his rights so acquired were extinguished by the sale under the judgment in that action. These expressions in reference to the effect of a sale under foreclosure were, however, but the statement of a general principle in which only the ordinary facts and the usual conduct of parties were to be considered, but are inapplicable in the consideration of an unusual state of facts or conduct, as where the mortgagee fails to record his mortgage until after a third person has acquired an interest in the land. It would be a harsh rule of procedure to hold that the foreclosure of a mortgage which the statute had declared to be void would extinguish the interest of such third person. The principle is well settled that paramount and adverse titles are not proper subjects for adjudication in actions for the foreclosure of a mortgage. The adverse title here referred to is not limited to one which is adverse to the title which was in the mortgagor at the date *560
of the mortgage, but includes a title that is adverse to that which the mortgagee brings before the court. A title may be paramount and superior to the title of the mortgagee, although acquired after the date of the mortgage, and, if after the execution of the mortgage, a purchaser from the mortgagor acquires a title which is superior to that of the mortgagee, that title is adverse to the mortgagee's title. The provision in section
The title of the plaintiff being, therefore, adverse and superior to that held by Purser, the plaintiff was not a necessary party to the foreclosure, and, although he was made a party, the facts presented upon the record were insufficient to render the judgment against him a bar to his assertion herein of his superior title. The complaint simply alleged that he had or claimed to have some interest in the lands, but that such claim was "subsequent, subject, and subordinate to the lien of the plaintiff." In his answer thereto the plaintiff herein denied this allegation and affirmatively alleged that his claim was not subsequent, subject, or subordinate to the plaintiff's lien. The court made no finding upon this issue, but merely found that the defendants claimed some interest in the premises, and in its judgment expressly decreed "that said foreclosure sale shall be without prejudice to any and all prior and paramount rights of the defendants, except the defendant Eagle Lake Land and Irrigation Company." There was, therefore, no adjudication upon the issue whether the title of the plaintiff herein was subordinate *561
to the claim of the mortgagee, and the plaintiff is, therefore, not estopped thereby from asserting in this action his claim of title to the lands purchased by him at the sheriff's sale.(Beronio v. Ventura County Lumber Co.,
The judgment and order denying a new trial are reversed.
Garoutte, J., and Van Dyke, J., concurred.
Hearing in Bank denied.