15 Cal. 287 | Cal. | 1860
Cope, J. concurring.
In May, 1854, Naglee and Sharp, as trustees of John and Mary Ellig, by indenture, leased to Brown and Keyser certain premises, sit
In a suit brought by Mary Ellig, to obtain an account from Naglee and Sharp, as trustees, and a surrender of the trust estate, the plaintiff was appointed receiver and authorized to institute the present suit. The object of this suit is to recover possession of the premises and the rents, for which the lease stipulated, subsequent to the first assignment
Whilst Sherman was in possession, he was sued, as we have stated, for the rent of the entire remainder of the term, eighty thousand dollars. Alarmed at the prospect of being ruined by his acceptance of the assignment of the lease, though intended only as security for a loan of five thousand dollars, advanced by the firm of which he was a member, he naturally looked around for some means to free himself from responsibility. Ascertaining that the law authorized him to assign over, even to a beggar, he found in Jeffries a convenient person to take the lease off his hands, and to him he made the assignment. His conduct was the dictate of common prudence, such as any man in his senses would have pursued. He is not connected with the receipt of any rent after the date of the assignment. It is true that Bowman was the attorney of Sherman, and was also the attorney of Jeffries, but the assertion for that reason of the responsibility of Sherman for moneys
Since the assignment to Jeffries, Sherman has not had or assumed to have any possession of the premises—or to exercise any control over them. So far then as their recovery is concerned, the action must stand as one brought simply against the tenants, and the claim against Sherman for the back rents is an independent matter, resting solely upon the assignment to him. It is evident that had the complaint been, what it becomes, when stript of the allegations as to the assignment to Jeffries, it would have been demurrable for misjoinder of causes of action. The parties have, however, waived all objections to the form in which the recovery is sought. They even consented on the oral argument to allow the judgment for the premises to stand. The objection taken is to the claim against Sherman. No recovery was had for the rents for the period intervening between the first and the second assignment, but the Court below held him liable for the rents from the date of his possession in March, 1855, and for the actual rents collected after the assignment to Jeffries. The latter claim for the rents after assignment it is unnecessary to notice. It is clear after what we have already said, that no liability for them ever attached to Sherman. The question then is this: Is Sherman liable for the rents from the date of his possession in March, 1855, to the date of his assignment to Jeffries in August following ? The evidence discloses that this assignment was taken as security for the loan of five thousand dollars. All the parties admit that this was its object. Sherman so alleges under oath in his answer. Brown testifies to the same thing. The lessors were aware of the character of the transaction, and were not, therefore, in a position to assert rights founded upon the absolute form of the instrument. The admissibility of parol evidence to show that a conveyance, or assignment absolute upon its face was intended as a mortgage, is no longer an open question in this State. After some fluctuation of opinion on the subject, it has been finally and definitively settled. Such evidence is admissible, not to vary the language of the instrument, but to explain the character of the transaction; not to ascertain the meaning of the terms of the instrument, but to show the purposes for which the instrument itself was executed. (See Pierce v. Robinson, 13 Cal. 116.)
In this State a mortgage is regarded as a mere security, and not as a conveyance vesting in the mortgagee any estate in the land either before or after condition broken. As a security for a debt, default in the payment does not change its character. Payment after default operates to discharge the lien equally with payment at the maturity of the debt. (Act concerning Conveyances, sec. 40.) Nor can possession under the mortgage affect the nature of the mortgagee’s interest; it does not abridge or enlarge his interest, or convert what was previously a security into a seizin of the freehold; it does not change the relation of creditor and debtor, or impair the estate of the mortgagor, but leaves the rights and interests of the parties exactly as they existed previously. Possession taken by consent of the owner, or by contract with him, may confer rights as against third parties, but they are independent and distinct from any rights springing from the mortgage, from which they derive no support. In thus holding we only carry the doctrine that a mortgage is a mere security for a debt to its legitimate and logical result. (McMillan v. Richards, 9 Cal. 411; Naglee v. Macy, Id. 428.)
In England, as we have before stated, a mortgagee of a term out of possession is liable as assignee, because he is by the mortgage invested with the entire estate. In New York, he is only liable when in possession, because until then, he has a mere chattel interest, but is held liable after possession taken, because then he is considered as having the title of the mortgagor. In this State, he is not regarded as ever having the title of the mortgagor, until judicial foreclosure and sale. The title remains with the mortgagor whether possession be taken, or otherwise.
Nor is there any hardship upon the lessors, in the conclusion to which we have arrived. They could, at once, have proceeded against the lessess, Brown and Keyser, for the monthly rent stipulated, and have brought their action for a forfeiture of the lease, and a recovery of the premises. If they neglected to pursue the remedies afforded by the law, the consequences cannot be thrown upon Sherman.
The judgment of the Court below, declaring a forfeiture of the lease, and directing a surrender of the possession of the premises to the plaintiff, free from all claims and demands upon the same, and all the provisions and covenants of the lease, must, upon the consent made on the argument, be affirmed, but in all other respects, the judgment must be reversed; and it is so ordered.
Baldwin, J., having been counsel for the appellants, did not sit in the case.