75 Cal. 102 | Cal. | 1888
Lead Opinion
— After a full consideration of this case in Bank, we have reached the conclusion that the judgment of the court below should be affirmed.
The action is brought by plaintiff, Houghton, to foreclose a mortgage executed to him on April 6, 1871, by defendant Allen. The mortgage includes certain land not in contest here; and also lots 6, 7, and 8,—the premises in controversy.
The court below rendered judgment foreclosing the mortgage as to the other land, but refused to include lots 6, 7, and 8 in the decree. From the last-named part of thé judgment plaintiff appeals.
The complaint is in the usual form, and proceeds upon the theory that Allen was the owner in fee of the lots in question. The averments as to those lots are the same as the averments as to the other property included in the mortgage. If the theory of the complaint had been carried out in the judgment, all right of defendant Dresbach in the said lots would have been foreclosed, and as against him the purchaser at the foreclosure sale would have taken an unencumbered fee-simple title.
If there were nothing in the contract more than as above stated, it would be clear that no interest of any kind in the lots in question remained in Allen or Houghton. There was another clause, however, which provided
Admitting, for the present, that Allen, as against Houghton, could not waive the sale of the lots at auction, and that no demand for such sale was necessary; and admitting further that if Houghton had foreclosed whatever interest Allen had in the lots by virtue of the contract, and purchased at the foreclosure sale, he might have maintained an action against Dresbach for the direct purpose of compelling a sale at auction, and the appropriation of the surplus, if any, over the contract debt, to Houghton,—still, it seems clear that'in this present action the title of Dresbach cannot be foreclosed and cut off. The rights only of those who hold or claim under the mortgagor can be determined in an action to foreclose a mortgage; a title claimed adversely to the mortgagor cannot be thus litigated. (Grogan v. Spence, 53 Cal. 15; Marlow v. Barlow, 53 Cal. 456; San Francisco v. Lawton, 18 Cal. 465.) Dresbach did not hold or claim under the mortgagor, Allen; he held under Jackson, and stood in the latter’s shoes. He was, therefore, not a proper party to the action. Having been made, however, a defendant under the general averment that he had or claimed some interest in the mortgaged premises which was “subsequent and subject” to the mortgage, he was forced to answer. His answer set forth the nature of his interest, and denied that it was subject to
Judgment affirmed.
McKinstby, J., Seabls, C. J., Thobnton, J., and Shabpstein, J., concurred.
Dissenting Opinion
I dissent. Allen held a mortgageable interest. (Civ. Code, sec. 2947; Jones v. Lapham, 16 Kan. 540; Laughlin v. Braley, 25 Kan. 147; Crane v. Turner, 67 N. Y. 437.) Pie mortgaged that interest to plaintiff for a valuable consideration. The mortgage was recorded April 7, 1871, nearly a year before Dresbach purchased. This record, and Allen’s request, while in possession, that Jackson should convey to Dresbach, gave the latter full notice of Houghton’s claim. He knew that Allen had mortgaged h'is interest in the property. He saw Allen in possession of the premises, and was bound to know what interest Allen held, and having notice of the facts, he could not defeat Houghton’s lien. Jackson could not have conveyed to Dresbach so as to deprive Allen of his interest under the contract, without Allen’s consent. Allen’s interest did not cease upon the failure to pay the installment due August 22, 1872. So long as Jackson was satisfied to allow Allen to remain in possession without payment of the installments, there was no determination of the interest held by Allen. After pledging all the rights he held under the contract to Houghton as security for the payment of his obligation, Allen could not in equity destroy the effect of that security by a voluntary surrender or waiver which had neither consent nor consideration to support it, so far as Houghton was concerned. Certainly the rights of Dresbach could not be enlarged over those of Jackson under the circumstances, in consequence of the deed from the latter to the former (Baker v. Bishop Hill Colony, 45 111. 264), and Allen, Jackson, and Dres
Assuming his rights to be equal to those of Jackson, the decree should be modified so as to include lots 6,7, and 8, and to have the proceeds of the sale, or so much as may be necessary, applied to the satisfaction of plaintiff’s mortgage, after retaining out of the proceeds the amount which was due on the contract at the time of the purchase by Dresbach, together with interest and the expenses of sale. The execution of such a decree would be a substantial compliance with the terms of the contract and secure the rights of all parties without further litigation.