*1 1912.] еtc. Sav. Soc. v. July Appellate District. No. 1000. First [Civ. GOLDWATER, THE HIBERNIA Respondent,
HYMAN v. Ap Corporation, SOCIETY, AND LOAN SAVINGS pellant. op
Mortgage—Nature op op Security for Debt— Power Sale—Part mortgage, Title.—A of sale contained Lien Without Code, authorized and the terms is section 2932 of the Civil of the 858 of that code to be deemеd therefore, debt, mortgage for the with the and it in the nature of a lien affected conveys power, and no estate or title to the land. op op Id.—Extinguishment op Mortgage Power Liens of Sale— op Limitations.—Since, express terms Statute Code, extinguished the Civil “a lien is of the provisions time within under the Cоde of Civil Proce- dure, brought upon principal obligation,” action can be where mortgage thereby debt and note are forever barred secured extinguished, mortgage extinguished, of the the lien and the therein, “part which is deemed security” debt, thereon, same and in of a lien the nature extinguished. likеwise Id.—Attempted Extinguished op Sale Under Power Sale—Restraint op Payment op Equity—Tender Required. Debt Outlawed Where the seeks a decree in equity restraining a sale of land under a of sale executed a deceased mort- gagor, attempted subsequent mortgaged owner land after the mortgаge thereby and the debt secured had become ex- tinguished by of limitations, required, in order to action, maintain to tender of the out- unpaid lawed debt. Supreme op Id.—Opinion Denying Rehearing—Na- on Order Court op op Power ture 'Sale Immaterial—Naked Power—Interest Extinguished.—It supreme court, is held deny- its оrder ing rehearing, opinion that of the district appeal court of correct, regardless whether a of sale con- in mortgage technically or is not tained land; at the time defendant to exercise the barred, were was deceased; thereby the lien extinguished, and the as holder of the was without interest lienholder, all, interest, land or at coupled it, once with exist; had ceased to it became a naked power, which ter- extinction of the minated Hibbbnia etc. Goldwateb judgment Superior
APPEAL of Ala- Court Judge. County. Waste, Wm. H. meda The facts in the of the court. are stated *2 Tobin, Appellant. & Tobin Reed, Reed, Black Huxley, & W. Bingaman, J. and Thos. C. Respondent. HALL, J. judg- a appeal by This an from defendant overruling ment plaintiff, rendered of after an order favor complaint defendant’s and demurrer amended sustaining plaintiff’s answer and to defendant’s demurrers cross-complaint. by complaint restraining
Plaintiff a de- decree fendant from the threatened of land of under sale by of sale, contained executed the predecessor Hinz, upon plaintiff, interest of one Julia her homestead, $3,000 the sum of interest. secure and appears
As the Hinz Julia had deceased complaint, attempted power, the execution before and the debt and by limitations, had also note become barred the statute of pleaded up bar is and complaint set both the and cross-complaint. the demurrer to defendant’s and answer debt, appears pleadings, The from the never been paid. cross-complaint up greater answer
The and set the facts complaint, than it is perfectly detail in the but clear from pleadings mortgagor all of the had each and deceased long of power, that, before the execution likewise, any upon debt, naortgage note had barred of the statute limitations. become attempt mortgage An was made foreclose in suit executor defendant of the last stituted mortgagor, failed for the reasons forth in set (Hibernia appeal to this court. L. decision S. & Soc. v. App. 626, Laidlaw, Pac. presented by points of law demurrer be con- heads, under three so
sidered are discussed very able mannеr counsel. Say. 1912.]' mortgage given to Is a contained in a
1. secure owing mortgagor money, sum mortgagor'? revoked death mortgage Does the of sale contained in the survive 2. barring ? longer 3. If it be of sale is determined that the suggested, may existent, for of the reasons above either or her in interest invoke aid a court successor sale under the with- to restrain unpaid, debt? tendering payment out respondent have discussed these three Both ability. questions elaborately much and with contained in power to sell Whether or not the mortgagor depends the death revoked power coupled sale is a whether or not such 2356.) (Civ. Code, sec. conflict question there is much decisions Upon this California, mortgage as in transfers where, in those states *3 mortgaged. property the title or estate in necessary to do not deem it deter- case, however, we In agree with appellant for that the ulti- question, mine this controversy matters between of the determination mate depends upon the construction óf sec- defendant depends Code, upon for of the the 858 and 2911 Civil tions power or the whether not to sell meaning sections of these of the statute survives contained the debt and provides that: “A lien is ex- оf the Civil Code
Section the within under the by time the tinguished Procedure, an action can be of the Code Civil provisions obligation.” principal the brought upon country, advised, far as we are so in this state No other statutory In York law. New the in its provision any such being “not” reverse, word the inserted just the provision is “extinguishеd.” word the before light be thrown upon can law little the apparent that It jurisdictions state, from other which have by decisions of this rule of law contained in provision our section no such (cid:127) 2911. ' App.:—33 19 Oal. plain meaning according its
This section have but one can lapse of terms, the extinguished lien is is that the obligation. upon principal the time that will bar an action sell, suggests power What is a question, This at once in mortgage? Such a is authorized the terms (Civ. Code), “is (Civ. Code) terms of section words, security.” In other part to be deemed a of the security payment of the part to sell is a of the mortgagor hаs By the debt. execution mortgagee for sale placed property under words, In to secure the of the debt. other power. upon lien affected to sell but a conveys no estate or title to the land. It (Civ. Code), “A
By of section 2872 lien is a the terms by a charge imposed in mode other than transfer trust some made upon specific property per- which it is formance of an act.”
A to sell land contained and which is security” expressly by our law “to be deemed a within (sec. 858, Code) squarely comes the definition of a Civ. upon mortgaged imposed land to secure lien. It is Being lien, by very payment оf the debt. terms extinguished (Civ. Code), barring, section 2911 limitations, an action the debt to secure given. We escape of which it was can see no compels logic which the conclusion at which we from the have the section of bearing from consideration our law arrived discussion. under language argument application its should be confined to suggests remedy us as sound. The bar by action does strike as to remedies already fully court had been completely pro- something This section was intended to do *4 for. vided that had relating the various sections done to been time brought. may be It was pro- to within intended extinguishment of lien given upon property for the vide of a debt whenever time an obligation or other is barred. the debt clearly view of the effect (Civ. 2911 This Henry, 419, Puckhaber v. Code) 420, taken Sav. etc. Soc. Rep. 114], Am. St. Ann. where the 844, Cas. 93 Pac. points court out the difference the rule in between California pledge and other case of states. The had before it the remaining in debtor possession creditor, which the obtain, which is not the successor to interest case rule here. The court effect of the California said: “The undoubtedly any prevent affirmative action on the mortgagee lien, or pledgee to enforce his after the debt precisely barred statute of limitations.” "Whichis appellant trying By what to do in at bar. adver- the case tising ap- sale, for sale and pellant By taking enforce his lien. affirmative action to directing its cross-complaint, in it asks for a decree it proceed taking to sell under it is also affirmative action. Hinton,
Appellant cites the case Menzel v. N. C. Rep. 647, 385], Am. 44 S. E. North Carolina, St. holding case survives the debt, as to claims that the law of such state is similar law to the state this embodied examination of the case discloses that there is no law North Carolina similar to our section 2911. The court had before simply construction usual statute of limitations bringing as to action in nothing the time court. There is of North Carolina, cited, as disclosed in the case providing extinguishment liens. The (It point. be noted Menzel v. Hinton decided two.) divided court—three forth,
For the reasons above sеt we are of power’of sale under which threatens to sell expired, longer validity. tiff’s land brings This us to the third involved in appeal: May equity invoke the aid of a court to restrain threatening sale under the tendering without but unpaid, debt ? argues Appellant with much earnestness learning within the rule that “he this case comes who seeks must many rule of equity,” might do and with the cases that mortgagor may hold that cited that not invoke the aid quiet his the cloud of an court to title outlawed mort- offering gage,-without pay unpaid *5 516 Goldwater v. Hibernia [19 Sav. etc. Soc. seeking plaintiff
But in to the status this case disturb quo. asking He is not to remove a cloud his the court title, may incidentally ap- except preventing as it do so pellant taking aggressive and further action that will put upon The plaintiff’s further and additional cloud. title a re- provision in this contains involved case given citals in may the deed that the sale under the be power “must be conclusivе of the facts re- deemed evidence cited.”
Appellant lapsed threatening proceed to to sell under this power and, alleged, purchaser a deed to the as it is will execute under such sale. appellant that if should
It cannot be sue doubted successfully plead foreclоsure, plaintiff in tiff could bar equity. in in to statute such a suit It seems us present- in appellant, bears relation to now the same ing right prevent to the enforcement of adjudication in extinguished lien, by appellant the affirmative may containing which result in deed re- threatened sale extinguishing title, he result citals that appellant if should sue foreclosure appellant to would bear plead bar of the In should statute. herein setting up the bar of the be either he would but using against He him. would be prevent affirmative a shield and not as sword. statute as glad are to refer the ease re much In this connection proposition sustaining as upon by lied of power will not restrain the execution (House 453, Carr, v. 185 Y. N. sell 510, A., S., Ann. 6 L. R. Rep. Cas. N. Am. St. In ease the court was divided N. E. majority The held four to three. that the action proportion only majority cases opinion two lie. would exactly point Young, are cases v. cited Goldfrank Adrian, 112 N. v. C. E. 432, and S. Hutaff Tex. deed, sale was under a trust case the In Texas 78]. and the North trustee, Carolina case conveyed the fee by a plaintiff possession suits jurisdiction where inwas plaintiff can entertained, where defend not be ejectment. eases, Neither of these purchaser offthe suit by. the majority opiniоn,' rule followed to the support much lend Soo. three hand, the other Upon the other House v. Carr. J., which to our judges agree by Vann, in an written should presents cogent why the action minds reasons most reasons that opinion very fully points out the sustained. This *6 why suggested reasons have to this as sound themselves court сourt the aid permitted to invoke should be aggressive protect himself his title from a language An attack, attack. which because of the of his may unlawfully depriving plaintiff power, result allegations property, appears'from as it had pleading, claim paid he full value after the we extinguished. For these reasons been barred and its lien do the rule that a not think that this comes within quiet tiff of a not invoke the aid unpaid, title cloud of right plead is, think, had a Certain it appellant’s bar of as a defense to cross-com directing expressly for a decree plaint, which he ruling of authorizing power, and the the court a sale under undoubtedly cross-complaint was upon the demurrer to the Seltzor, App. 141, Pac. (Marshutz v. Cal. correct. in its Upon case, we think court did not err the whole demurrers, judgment should be rulings upon the and that affirmed, so ordered. and it is J., Kerrigan, J., concurred. P.
Lennon, court, supreme A have the сause heard in the petition to judgment appeal, in the district court of was denied after September following supreme court on and the rendered thereon: then opinion of THE COURT. deem the the district court We correct, regardless whether appeal herein technically of sale inсluded is or the land. At the time the defendant on power, had become execute mortgagor was deceased. The lien of the mort- barred and extinguished, gage was, therefore, and the as holder land, was without interest whatever in the power, Consequently, prin- at on lienholder or all. well-settled as Knight v. Black. ciples, coupled it had ceased to interest once then exist, it had who a naked become being made dead, extinc- with the had terminated tion of the petition hearing supreme for a court is denied. Appellate District. July No. 1010. First
[Civ. BLACK, Ap ROBERT HENRY KNIGHT, Respondent, S. pellant, QUINN, and IDA JANE QUINN, DOE Sued Codefendant.
Unlawful Detainer—Breach of Covenant in Lease to Secure Bent Mortgage Furnishings—Condition—Cause —Chattel of Ac- Properly Overruled.—In. tion—Demurrer an action unlaw- detainer, complaint ful covenant, sets forth tho breach of a *7 by the building terms of a lease of a is made a condition lease, requiring security rent, upon completion of the building, complete furnishing same, a cash value $3,000, by chattel on the furnishings sum, in that meeting default may, condition the lessor at his lease, option, forfeit which alleges proper forfeiture and refusal, action, demand states a cause of and a demurrer thereto properly overruled. is a de- and Covenant.—There Condition Id.—Distinction Between distinction cided between the creation and effect of a condition estate, qualification A condition is a a covenant. annexed to defeated, happening enlarged which the estate is or covenant, it differs is in that created mutual binding upon whereas agreement parties, both, is only. an agreement of the covenantor A breach of a covenant granted condition on which an estate works a forfeiture estate, agreement while the of a breach sole covenantor merely grоund recovery damages. Belative Id.—Construction of Conditions Forfeiture—Beal In- Controlling.—In convey- the construction tention Parties ordinarily, forfeiture, léase, to avoid a ance conditions be covenants, reasonably when done; this can construed but a covenant, condition, implied contrary will never be instead of this, parties. held, cage, that, real intention of It n though provide agreement designated for rent