Peshine v. Ord

Citations

• 119 Cal. 311
• 51 P. 536
• 1897 Cal. LEXIS 894

Syllabus

<p>Mortgage by Deed Absolute—Adverse Possession of Mortgagee—Prescriptive Title.—The fact that a mortgagor cannot maintain ejectment against Ms mortgagee in possession until the mortgage debt is paid does net preclude the mortgagee .from acquiring a prescriptive title by r,dverse possession; and where the mortgage was in the form of a deed absolute on its face, and it appears that subsequent to conditions broken there was a hostile possession of the mortgagee under claim of title to the knowledge of the mortgagor, for more than five years, a prescriptive title is acquired by the mortgagee, and all remedy of the mortgagor, and of those claiming under him, is lost by limitation.</p> <p>Id.—Quieting Title against Mortgagee—Maxim—Condition of Action— Statute of Limitations—Loss of Remedy.—A mortgagor, or his successor in interest, who seeks to quiet title against the mortgagee in •possession, is bound by the maxim that he who seeks equity must do equity, and must pay the mortgage as a condition of success in the suit; but if the mortgagee in such a case denies that there is any equity to be done by the mortgagor, and has asserted title in himself, the mortgagor or those claiming under him must proceed against the mortgagee within five years after an adverse claim of title has been made manifest, or lose all remedy, whether the debt or obligation secured by the mortgage has been paid or not.</p> <p>Id.—Divestiture of Title of Mortgagor—Decree of Divorce—Subsequent Acts of Mortgagor not Binding—Adverse Claim.—Where the title of the mortgagor has been divested by a decree of divorce, his subsequent acts are those of a stranger to the premises, and cannot defeat any rights acquired under the decree; and an agreement made in a subsequent action brought by the mortgagor against the mortgagee in possession, by the terms of which the mortgagor agreed that the mortgagee was the owner of the premises covered by the decree of divorce, cannot defeat the rights acquired under that d