Whitney v. Buckman

Citations

• 13 Cal. 536

Syllabus

<p>That property mortgaged is so indefinitely described as not to pass title by sale on foreclosure, is no objection to the enforcement of the mortgage against the mortgagor.</p> <p>Where the description was, that “ certain tract or parcel of land situated in said county of Napa, consisting of a pre-emption claim of one hundred and sixty acres, and commonly known as the ‘Soda Springs,’ and embracing the said springs, and the improvements thereunto belonging, and being about five miles from Napa City, in a northerly direction, together with all and singular the tenements,” etc.; JIdcl, to be prima facie sufficient.</p> <p>The right to a pre-emption in public land is not assignable; but the possession of public land, whether taken for the purpose of getting a pre-emption right, or any other purpose, or the land itself, may be mortgaged ; and if the mortgagee gets no title through the mortgage, this is not an objection to be raised by the man who makes it.</p> <p>If a mortgage under seal expressly declares and recites an indebtedness, this is sufficient evidence of the indebtedness in a foreclosure suit. No law requires any note, bond, or the like, in addition to such a mortgage.</p> <p>An affidavit by defendant, in effect acknowledging the debt for which suit is brought, is admissible in evidence for plaintiff, though made In a former suit between the parties. And although the affidavit was unnecessary, still, this being an equity case, defendant cannot complain that plaintiff proved his case too clearly, or introduced redundant testimony, because the mortgage was uueontradicled and conclusively established the debt.</p> <p>Errors in the computation of interest should be corrected by motion, in the Court below.</p>