93 Cal. 578 | Cal. | 1892
The defendants Bean and Brown executed a mortgage to the assignor of plaintiff upon two adjoining mines, one of which is called the Rattlesnake Extension Mine. Several other persons were made defendants, as claiming some interest in the mortgaged premises. All the defendants made default except James H. Sturgeon, who answered, setting up, in brief, that plaintiff acquired no interest in the undivided two thirds of said Rattlesnake Extension by said mortgage made by Bean and Brown; that the latter had no right or title to or in said two thirds; and that at the time of the execution of said mortgage, and ever since, said Sturgeon was, and has been, “ the sole, lawful, and exclusive owner”
The title to a portion of the mortgaged premises thus asserted in appellant’s answer was paramount and hostile to the title of the mortgagors and mortgagee; and it has been held here uniformly and repeatedly that such a title cannot be litigated in an action to foreclose a mortgage. (Ord v. Bartlett, 83 Cal. 428, and cases there cited; McComb v. Spangler, 71 Cal. 418; San Francisco v. Lawton, 18 Cal. 474; 79 Am. Dec. 187; Sichler v. Look, post, p. 600, and cases there cited.) In Ord v. Bartlett, 83 Cal. 428, it was held that a demurrer to such an answer was properly sustained. In the case at bar, wt¡,en the appellant commenced offering his evidence to show his paramount title, respondent objected to it because it was “ irrelevant, immaterial, and tends to prove no issue in the case.” The objection should have been sustained; but it was erroneously overruled. After that the trial proceeded upon no very well-defined theory; but it is probable that the court undertook to try and determine appellant’s said paramount title. If the issue as to that title had been properly before the court, we are not prepared to say that its conclusion about it was erroneous; but we shall not examine that question; for to allow such issues to be litigated in an action to foreclose a mortgage when the sale under the decree carries to the purchaser merely such title as the mortgagor had would be to sanction a condemned practice and confuse litigation. Titles like that asserted by appellant “ must be settled in a different action, giving rise, as they generally do, to questions of purely legal cognizance. (San Francisco v. Lawton, 18 Cal. 474; 79 Am. Dec. 187.) As
We do not think that the judgment in the case at bar really affects the title which appellant sets up in his answer; but to make that point clear, we have considered it proper to follow the precedent of Ord v. Bartlett, 83 Cal. 428, and modify the judgment in that respect.
It is ordered that the judgment of the superior court herein be modified by adding thereto, immediately before the words “ done in open court,” the following: “ Provided that nothing in this judgment shall be construed or held to prejudice or affect any right or title of the defendant James H. Sturgeon to- any part of the said mortgaged premises which he may have had prier to and at the time of the execution of the mortgage set forth in the complaint herein, and which he asserts adversely to the title of the mortgagors therein.” And as thus modified, the judgment and order denying a new trial are affirmed, without costs to respondent.
De Haven, J,, and Sharpstein, J., concurred.
