Kirkham & Woods v. Dupont

14 Cal. 559 | Cal. | 1860

Lead Opinion

Baldwin, J.

delivered the opinion of the Court—Field, C. J. concurring.

Eodman Gibbons was indebted to Freaner and Johnson, by note; to secure it, Eodman Gibbons and William P. Gibbons executed a joint mortgage upon a tract of land held by them in common. Afterward, Eodman Gibbons and one Lamott, his partner, became indebted to Henry Dupont and Alexis Dupont, in the sum of about sixteen thousand dollars, for which they made their note; and to secure it, Eodman Gibbons executed to the Duponts a mortgage upon his undivided interest in the tract of land embraced in the prior mortgage to Johnson and Freaner. This note to Johnson and Freaner not having been paid, they brought suit to foreclose the mortgage, but failed to make the Duponts parties to it. The mortgaged premises were sold under decree of foreclosure, and Johnson and Freaner became the purchasers ; they took the Sheriff’s certificate, and subsequently the deed. The mortgaged property not having satisfied the decree, a personal judgment was rendered against Eodman Gibbons for the deficiency. After obtaining the deed, Freaner and Johnson conveyed the premises, and assigned the unsatisfied judgment against Eodman Gibbons to the plaintiffs, Kirkham & Woods. The parties brought this suit against Henry Dupont, as surviving partner, and as Administrator of Alexis Dupont, setting up in the complaint these facts, and praying that the Duponts be barred of their equity of redemption. The answer admits the facts, and avers that the debt of sixteen thousand dollars from Gibbons & Lamott is due and wholly unpaid; and the defendants offer to redeem the premises, and pray to be subrogated to the rights of the plaintiffs in respect thereto. The District Court entered a decree allowing the defendants to redeem the whole mortgaged premises, on paying the whole mortgage debt, interest, and costs, and all taxes, etc. and subrogating the defendants, in case of redemption, to all the rights of the plaintiffs in respect to the mortgaged premises, and the unsatisfied judgment against Rodman Gibbons. The decree directs, also, that if the redemption be made, the Sheriff’s deed to Freaner and Johnson be set aside, and that the plaintiffs assign the judgment held by them to the defendants. From this decree the plaintiffs now appeal.

We have read attentively the argument of the Respondents’ counsel, but it seems to us to be more ingenious than solid. It has been seen that Wm. P. Gibbons mortgaged his undivided interest in the land in question, as security for the payment of the debt represented -by the note of Rodman Gibbons to Freaner and Johnson. Upon what consideration Wm. P. Gibbons made the mortgage to secure this debt, does not distinctly appear. It would seem, a priori, that, when Gibbons gave this mortgage as security for the debt for which it was executed, the usual legal incidents to this form of contract attached—that the creditor had the right, as one of those incidents, to enforce the security—and this he seems to have done in the usual mode, by filing a bill to sell and foreclose. The effect of the sale was to vest the title in the purchaser, if the land were not redeemed in the regular order of procedure. There was no redemption, or attempt at redemption ; consequently the title to the property became vested in the purchaser. We see no necessity for making the Duponts, who were the subsequent mortgagees of the interest of Rodman Gibbons, parties to this foreclosure suit, so far as Wm. P.’s interest is concerned, for they were not subsequent mortgagees of the land or interest of Wm. P. Gibbons, but only of the interest of Rodman Gibbons. It is quite true that the effect of the failure to make them parties was to leave them unaffected by the decree ; and that, being the assignees of Rodman thus unaffected, they still continued, notwithstanding the decree, assignees of his right, with the privilege of redeeming the premises mortgaged by Rodman; but never having been assignees of William’s rights, we are at a loss to see how either before or after the decree, they could claim to redeem from the sale made of William’s interest. The case would be clear of all difficulty, if William had, subsequently to the execution of the mortgage by Rodman, executed a deed of mortgage upon the undivided interest in the land held by him. Then, as the security was devoted to its proper purposes, and title had vested in pursuance of law, it is plain that it could only be divested in pursuance of the same law, which could only result by a compliance with the condition of redemption within the statutory time. But this not having been done, the title would be absolutely fixed in the purchaser. We cannot see that the circumstance that this mortgage of Wm.P. Gibbons was cotemporaneous, affects at all the legal principle; nor can we see that the doctrine of subrogation has anything to do with the question. The right of subrogation supposes some original privilege on the part of the person whose claim is represented by the claimant. But certainly Rodman Gibbons never had this right, and we cannot perceive how his assignees are in any better position. The whole proposition may be thus stated: A owes B a debt, and mortgages an undivided half of a piece of land to pay it; C, the owner of the other half, mortgages that half to pay the same debt; A mortgages subsequently his half—first pledged to B—to pay another debt; A has no interest in the land C mortgages; B forecloses C’s interest and buys it in, he does not make the subsequent mortgagees of A, parties. But the effect of this is only to leave these mortgagees their rights—which were rights to redeem A’s land, not rights to redeem C’s land—the sale has become final as to the interest of C, and all the necessary parties are made to that suit; while the subsequent mortgagees may have a right, therefore, notwithstanding the foreclosure sale to redeem A’s land, they have no right to redeem C’s land, as to which they stood in no relation whatever.

Possibly, another view might be taken. Upon the face of the proceedings, with all the necessary parties, so far as William P. Gibbon’s interest is concerned, a sale seems regularly to have been made of that interest and title regularly deraigned through judicial proceedings, which title has passed apparently to an innocent purchaser. Could, under these circumstances, a redemptioner interpose, by force of equities not apparent upon the face of the record, to defeat the title of this purchaser ?

But, probably, it is not necessary to consider this question, for the view we have already taken of the case satisfies us as to the merits of the controversy.

Decree reversed, and cause remanded for further proceedings, in pursuance of this opinion.

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Concurrence Opinion

On petition for a modification of the opinion and judgment, the opinion of the Court was delivered by Baldwin, J.—Field, C. J. concurring.

Petition to modify opinion and judgment. The amount required for redemption is the amount of the mortgage debt, with interest, etc. less one-half of the purchase money of the whole tract sold as Rodman and W. P. Gibbons’, under the foreclosure sale.