Whitney v. Buckman

13 Cal. 536 | Cal. | 1859

Baldwin, J. delivered the opinion of the Court—

Terry, C. J. concurring.

There are no merits in this appeal, either in justice or in law.

1. If the property is indefinitely described, so that no title could pass from the sale on foreclosure, this defect is as much the fault of the maker as the taker of the mortgage; and it is no just objection on the part of the mortgagor, that the mortgagee has got, or will get, nothing from the security. We think, however, the property prima facie is sufficiently described.

2. There is nothing in the fact that this is public land. We have recognized the title, resting on possession in public land, in cases innumerable; all the ditch and mining claims in the State rest on the same basis. Tho mortgage does not pretend to transfer to the mortgagee the right to a pre-emption; this is not assignable, but the possession of public land, whether taken for the purpose of getting a. pre-emption right, or any other purpose, may be mortgaged, or the land itself; and if the mortgagee gets no title through the mortgage, this is not an objection to bo raised by tho man who makes it.

3. The mortgage expressly recites and declares an indebtedness. 'This is evidence, under the seal of the party, that there existed that indebtedness, at least for the purpose of the foreclosure of the security, unless, indeed, we should hold that if a man says, in a casual conversation, he owes another money, that declaration is evidence of the debt; but if he solemnly asserts it under seal, it is not. The mortgage does not show that any separate paper evidencing the debt—as a note or bond—was ever executed; and we know of no authority which requires it.

4. The affidavit and letter of defendant, acknowledging, in effect, the debt, though unnecessary, wore admissible; but the evidence was conclusive without these proofs, and the defendant, in an equity case, cannot complain that his adversary proved his case too clearly, or introduced redundant testimony, when there is no contradiction of that which sufficiently establishes the fact. If the proof were wholly inadmissible in such a case as this—die mortgage uncontradioted establishing conclusively the debt.—we should not reverse for the cause assigned.

5. The Statute of Limitations had nothing to do with the case. The mortgage shows a debt due within the statute period.

G. If there was error in the computation of interest, the defendant should have moved to correct it below. But we are not satisfied there was such error. If we were, we would not be disposed to correct tho decree on account of it, but should permit it to stand, leaving the excess over the proper amount to go as compensation to the Respondent on account of this appeal.

Decree affirmed.

See Tryon v. Sutton et al, (ante.)