Dutton v. Warschauer

Citations

• 21 Cal. 609

Syllabus

<p>The action of ejectment must be brought against the actual occupant of the premises, if there be one. If such occupant be a tenant of another, the landlord may appear and defend in his name or be substituted in his place.</p> <p>The appearance or substitution of the landlord should be entered of record, and only allowed upon notice to the parties. After it is once properly made, the tenant cannot interfere with any subsequent proceedings to the prejudice of the landlord.</p> <p>Where, without any order of record, the landlord, at the request of the tenant, appeared in fact and conducted the defense to judgment in the lower Court: Held, that it was too late to object in the Appellate Court to the want of the order; and that the landlord was entitled to the control of the appeal.</p> <p>The doctrine respecting mortgages which prevails in this State is, that a mortgage is a mere security operating upon the property as a lien or incumbrance only, and is not a conveyance vesting in the mortgagee any estate in the land either before or after condition broken.</p> <p>This doctrine was established, not merely from a consideration of the provisions of the Statute of 1851, but also from a consideration of the real object and intention of the parties in executing and receiving instruments of this kind, and as embodying the principles recognized generally in the Courts of other States.</p> <p>The provisions of the statute, however, led the Court to go beyond the decisions in other States adopting the equitable doctrine as to mortgages, and to . carry that doctrine to its legitimate and logical result by regarding the mortgage as a security under all circumstances, both at law and in equity.</p> <p>The character of the mortgage, as a mere security, is not changed by default in the payment of the debt secured, and payment after default operates as an extinguishment of the lien equally as payment at the maturity of the debt.</p> <p>The interest of the mortgagee is not enlarged