Wilson v. California Bank

Citations

• 121 Cal. 630
• 54 P. 119

Syllabus

<p>Mortgage by Deed Absolute — Foreclosure of Street Assessment — Parties.—Upon the foreclosure of a valid street assessment, the holder of the apparent record title is properly made a party defendant, under the street law of 1885, though he may be in fact holding only as a mortgagee by deed absolute.</p> <p>In.—Foreclosure op Mortgage—Hostile Title—Parties.—The title acquired .under the sheriff’s sale upon foreclosure of the street assessment, against the mortgagee by deed absolute, is not subject to the-asserted mortgage, but is superior and hostile thereto, and cannot be litigated in a subsequent action to foreclose the mortgage; nor is the claimant of such title a proper party to the latter action.</p> <p>Id.—Effect of Decree—Unrecorded Assignment of Certificate of Sale —Lis Pendens.—The decree of foreclosure of the mortgage is not binding upon the holder of an unrecorded assignment of the certificate of sale, who had become entitled to a sheriff’s deed under foreclosure of the street assessment against the mortgagee by deed absolute prior to the commencement of the action to foreclose the mortgage. The claim of such assignee is adverse to the mortgagor; and, not being a proper party to the action, nor made a party thereto, he is unaffected by the decree, or by a notice of lis pen-dens filed at the commencement of the action.</p> <p>Id.—Construction of Code—Unrecorded Instruments—Title Adverse to Mortgagor.—Section 722 of the Civil Code, making a decree of foreclosure of a mortgage conclusive against persons claiming under the mortgagor, whose conveyances or liens were not of record when the action was commenced, applies only to those holding from or under the mortgagor, and does not apply to a purchaser ■ at a sale for a street assessment or for a tax, or to the claimant of a title adverse to that of the mortgagor.</p>