Hall v. Arnott

Citations

• 80 Cal. 348
• 22 P. 200
• 1889 Cal. LEXIS 917

Syllabus

<p>Mortgage—Deed Intended as Security—Title—Right of Possession- — Cloud on Title — Redemption—Extinction of Lien. — A deed intended as a mortgage for a debt from the grantor to the grantee does not pass the legal title as between the parties, nor confer a right of possession upon the grantee; hut merely operates as a mortgage between them; yet, being absolute in form, it constitutes a cloud on the title of the grantor which he may remove upon doing equity by redemption and payment of the mortgage debt, regardless of possession by the grantee; and he must do equity by payment of the balance of the debt, as a condition of removing the cloud, though the lien of the mortgage be extinguished by failure of the grantee to foreclose it.</p> <p>Id. — Mortgages upon Distinct Properties for Same Debt—Foreclosure — Waiver — Demurrer for Misjoinder. — There can he hut one action to enforce the same debt secured by distinct mortgages upon real property, and if the plaintiff forecloses hut one of them, he waives and nullifies the lien of the other mortgage. The fact that an attempt was made to foreclose both mortgages in the same suit, and that a demurrer for misjoinder of causes of action was sustained, will not preserve the lien, if it does not appear that the complaint contained appropriate allegations to make evident the necessary connection between the two mortgages.</p> <p>Id. — Limitation of Action to Redeem. —Under section 2903 of the Civil Code, an action to redeem a mortgage may he brought by the mortgagor at any time after the obligation becomes due, and before foreclosure, regardless of the running of the statute of limitations against the principal obligation, unless the mortgagee has previously acquired a title to the premises by adverse possession for the period of five years.</p> <p>Id. — Redemption as Related to Title—After-acquired Title.—The mortgagor may sue to redeem from the mortgage regardless of whether he has a valid title to the mortgaged premises or not