Campan v. Molle

Citations

• 124 Cal. 415
• 57 P. 208
• 1899 Cal. LEXIS 1009

Syllabus

<p>Vendos and Purchaser—Loan to Purchaser—Promise op Mortgage-Judgment upon Note—Action to Set Aside Homestead Claim.—One who has loaned money to a purchaser of land with which to complete the purchase, and obtain title, and who has taken a note from the purchaser and his wife, under promise of a mortgage to secure it, when title was obtained, cannot, after their refusal to execute the mortgage, as promised, and the filing of a homestead claim upon the premises, and the subsequent obtaining of judgment by him upon the note, maintain an action to set aside and cancel the declaration of homestead, and to apply the land to the payment of the judgment.</p> <p>Id.—Subrogation to Bights op Vendor—Pleading.—If the complaint in such action does not contain the contract between the vendor and purchaser, or show that the vendor had rights which he could enforce against the purchaser, or show when the money. was paid, or the land conveyed, it does not show that the plaintiff was subrog-ated to any rights of the vendor. As the vendor retained the title until the purchase money was paid, there was no vendor’s lien to which the plaintiff could be subrogated.</p> <p>Id.—Equitable Mortgage not Superior to Homestead.—Assuming that the agreement by the purchaser to give a mortgage to the lender of the money constituted an equitable mortgage, it cannot be superior to a declaration of homestead filed by the purchaser, if no mortgage was in fact executed and filed for record, prior to the filing of the declaration of homestead.</p> <p>Id.—Personal Judgment—Election—Waiver op Equitable Mortgage. There can be but one action for the enforcement of a debt secured by mortgage; and by putting the promissory note into a personal judgment without seeking in that action to enforce an equitable mortgage against the homestead claimants, the owner of the note thereby elected to look only to the personal obligation of the makers, and waived and was deprived of any equitable mortgage that he might ha