Brown v. Winter & Sherry

Citations

• 14 Cal. 31
• 1859 Cal. LEXIS 231

Syllabus

<p>S. & B. in 1854, execute a mortgage on their property to H. Subsequently they execute another mortgage on the same property to plaintiff. Later—in 1855— S. conveys his interest to Y. the deed declaring the interest to he sold subject' to the two mortgages. Later, Y. sells to defendant, W. the deed containing the same recital as the last. In February, 1856, a decree of foreclosure of the first mortgage to H. sale of the property thereunder, defendant W. the purchaser, and in due time, a Sheriff’s deed to him, and possession. In June, 1856, foreclosure of the second mortgage to plaintiff, sale thereunder, plaintiff, the purchaser, and in March, 1857, Sheriff’s deed to him. Held, that plaintiff cannot maintain ejectment against defendant, W. on his Sheriff’s deed; that defendant, claiming title through foreclosure of the first mortgage, and being in possession, cannot be dispossessed by B.</p> <p>If plaintiff has any remedy against defendant, because of the recital in the deeds named, it is in equity.</p> <p>Assuming that, hy the recital, defendant became bound to pay plaintiff’s mortgage debt, still he had a right to pay it by a sale and purchase under the first mortgage.</p> <p>Query, whether a party buying an equity of redemption subject to a mortgage, assumes the payment of the mortgage debt. However this may be, clearly no one but the vendor or his mortgagee can enforce the obligation ?</p> <p>And if, with their consent, or a waiver by them of the right to enforce the assumpsit as a personal duty, with the intention of looking to the land alone as security, the mortgage debtds paid by sale of the premises to the vendee, such sale passes the legal title. And the second mortgagee must go into equity, making all persons connected with the two mortgages, parties, if he really have any rights.</p>