Perre v. Castro

Citations

• 14 Cal. 519

Syllabus

<p>A tendee of the money due on a bond and mortgage, after the law day of the mortgage, and a refusal to accept the money, do not discharge the lien of the mortgage.</p> <p>Cases commented on.</p> <p>C. executes a bond and mortgage to D. and P. for money loaned, payable in three years with interest. On the same day C. executes a lease of the mortgaged premises to D. and P. partners, for three years, the lease referring to the bond and mortgage, and providing that D. and P. shall take immediate possession, which C. covenants shall be quiet and peaceable. D. and P. stipulate, that, if they have such possession, the interest on the bond and mortgage shall not be collected. D. becomes sole owner of the bond and mortgage and assigns them, under seal, to plaintiff. Held, that, in a foreclosure suit, plaintiff is entitled to interest on the bond and mortgage from the time of notice to defendants of the assignment, if not from the assignment itself, the term of the lease having expired before such notice, the whole interest of C. having passed to third persons, and the lease not recorded—defendants, being C., P. and purchasers under foreclosure of subsequent mortgages; that D. and P. could not, by continuing to occupy the premises after the term, so renew the lease in law, as to prevent plaintiff' from enforcing the contract according to its terms.</p> <p>On a settlement between D. and P. it was agreed verbally, that D. was the owner of the mortgage debt. Held, that this is a sufficient transfer, P. not objecting, being party to the suit, and D. having, in fact, advanced the money loaned. The decree will protect all parties.</p> <p>In a foreclosure suit, the decree will not apportion the debt among the several co-tenants of the land, who acquired undivided interests therein at the same time, and subsequent to the execution of the mortgage.</p>