Boggs v. Fowler & Hargrave

Citations

• 16 Cal. 559

Syllabus

<p>A decree in a foreclosure suit for the sale of the premises, where the mortgagor had transferred his estate in the premises previous to the institution of the suit, and his grantee was not made a party, is void so far as it orders a sale.</p> <p>A foreclosure suit, under our system, is only a proceeding for the legal determination of the existence of the lien the ascertainment of its extent, and the subjection to sale of the estate pledged for its satisfaction. Upon the validity and extent of that lien, the owner of the estate, whether mortgagor or his grantee, has a right to be heard, and no valid decree for the sale of the estate can pass until this right has been afforded to him.</p> <p>Goodenow v. Ewer (ante) cited.</p> <p>The doctrine of caveat emptor applies only to sales made upon valid judgments ; and is usually invoked with reference to sales upon execution issued against the general property of a judgment debtor. In these latter cases, a defect of title is no ground for interference with the sale, or a refusal to pay the price bid. The purchaser takes upon himself all the risks as to the title, and bids with full knowledge that in any event he only acquires such interest as the debtor possessed at the date of the levy, or the lien of the judgment; and that he may possibly acquire nothing.</p> <p>A somewhat different rule prevails in cases where particular property is the subject of sale, by a specific adjudication; as where the interest of A in a certain tract is decreed to be sold. To the validity of a decree of this character, the presence of A is essential, and when present, the decree binds him and is effectual, by the sale it orders, to transfer his estate. A valid decree in a mortgage case operates upon such interest as the mortgagor possessed in the property at the execution of the mortgage. That interest may not constitute a valid title; it may not, in fact, be of any value; and the purchaser takes that risk. To that extent the doctrine of cavea