143 P. 538 | Cal. | 1914
This is an action to foreclose a mortgage. Defendant O'Shaughnessy, mortgagor and former owner of the property, executed her note and mortgage in 1904. The debt matured three years thereafter. In 1905 she sold and conveyed the mortgaged property to Ellen O'Brien, who afterwards conveyed it to Alice B. Sullivan. She in turn conveyed it to George L. Mullen, and he in turn to Ida B. Moreland, defendant and appellant. Ellen O'Brien held record title to the property only from the twenty-fifth day of July, 1905, to the first day of August, 1905, when her conveyance to Alice B. Sullivan was recorded. It is stipulated by the parties that the original owner and mortgagor, O'Shaughnessy, and her grantee by mesne conveyance, Alice *325 B. Sullivan, were and remained continuously out of the state of California. Alice B. Sullivan made her conveyance to George L. Mullen by deed of quitclaim on the second day of March, 1911. This deed was recorded upon the ninth day of October, 1911. On that same day George L. Mullen's quitclaim deed to defendant and appellant, Ida B. Moreland, was recorded. This action was commenced on October 14, 1911, within a few days after the recordation of the deed from Alice B. Sullivan to George L. Mullen and his quitclaim deed to appellant Moreland. It was, however, commenced more than four years after the maturity of the note and mortgage. Judgment passed for plaintiff.
Ida B. Moreland, the present holder of the record title, appeals, urging that the judgment is erroneous in that the running of the statute of limitations in favor of a subsequent grantee of mortgaged premises is not suspended by absence from the state or by any other act of the original owner or mortgagor. This principle is well established. (Lord v. Morris,
Appellant contends that from a different source she has become the owner of this property, freed from the mortgage *326 lien. This source, as set up in her answer is the following: She asserts that in 1907 one John F. Sullivan was the owner of the mortgaged property; that in February of that year, under execution sale on a judgment secured by her against John F. Sullivan, she received a sheriff's deed to the property. It is not contended that John F. Sullivan had any record title to the property. Indeed it is conceded that he never did have such a record title. But appellant sought to introduce evidence showing that she was in fact such owner and that plaintiff had knowledge of her claim of interest in the land growing out of this sheriff's deed prior to the maturity of the note. This evidence was excluded by the court and it is here argued was erroneously excluded. Respondent's position is that as Sullivan never held any record title, the sheriff's deed of his interest to Ida B. Moreland and her recordation of that deed could not affect the rights of the mortgagee under his mortgage, appellant's contrary position being that the mortgagee would be bound by actual notice that she claimed ownership under the sheriff's deed.
Appellant, however, confuses the application of the doctrine of notice in fact with the doctrine of constructive notice by recordation. Her reliance upon the language of Filipini v.Trobock,
It was not error therefore for the court to reject this offered evidence touching some unrecorded deed which some one saw in the hands of John F. Sullivan, nor evidence that appellant claimed some interest in the property through and by virtue of such unrecorded instrument, and that plaintiff knew it. Under these circumstances, of course, against this respondent the sheriff's deed to appellant conveyed nothing.
The judgment appealed from is therefore affirmed.
Lorigan, J., and Melvin, J., concurred. *328