Marshutz v. Seltzor
Before: Hall
Synopsis
Quieting Title—Outlawed Mortgage by Third Party—Rule as to Payment Inapplicable—Burden of Proof—Findings.—The rule that a mortgagor or his successor, with notice of the mortgage, cannot quiet title against the mortgagee, though the debt is outlawed, without first paying the debt, is inapplicable, where the mortgage is by a third party, and the defendant does not sustain the burden resting upon him to allege and prove the connection of plaintiff’s title therewith, and where it is alleged and found that plaintiff’s title originated from the state subsequently to the mortgage, and was adverse thereto, and it is found that at the time of the commencement of the action plaintiff was the owner and seised in fee of the premises. In 'such case, the findings justified a decree quieting plaintiff's title against the outlawed mortgage, which is not found or shown to have ever been a lien on plaintiff’s title.
Id.—Gross-complaint to Foreclose Mortgage—Answer—Plea of Statute—Findings.—Where the defendant sought by cross-complaint to foreclose the outlawed mortgage, and the answer thereto pleaded that the action was barred by section 337 of the Code of Civil Procedure, a general finding that the action “was barred by the statutes of California,” followed by a finding “that said claim of the defendant Klumpke under the mortgage security so assigned to him is over forty years past due, and has not been prosecuted in any way until the filing of the cross-complaint,” sufficiently shows that the action on the note and mortgage was barred by the section pleaded.
Id.—Affirmative Proceeding to Enforce Outlawed Debt.—A proceeding under a cross-complaint to foreclose a mortgage is an affirmative proceeding to collect the debt secured by the mortgage, and where the debt is outlawed and the statute is pleaded, no decree of foreclosure should be entered, though the cross-complaint is in an action to quiet title against the mortgagee.
Id.—Compelling Adverse Finding—Removal of Cloud upon Title.— It seems that by setting up the outlawed mortgage by way of cross-complaint to foreclose it, the appellant having compelled a finding that the mortgage was barred, which resulted in a denial to him of any relief thereon, he has practically caused the removal of any cloud that might exist on plaintiff’s title by reason of the existence of the mortgage.
Id.—Uncertainty in Findings—Construction in Favor of Judgment.—Any uncertainty in the findings arising from a finding that the mortgagor had an interest which antedated plaintiff’s title, suggesting a possible inference that plaintiff’s title may have been subordinate thereto, must be so construed, in connection with the other findings, as to uphold the judgment rather than to defeat it.
Id.—Construction Against Justice.—Justice does not demand that uncertainties in findings should be so construed as to give vitality to a claim forty-five years past due, bearing interest at the rate of three per cent per month, and for which the present holder is found to have paid nothing.
HALL, J.
Plaintiff brought this action December 6, 1901, against defendants to quiet his title to beach and water lot No. 763, situate in the city and county of San Francisco. The complaint is in the usual form and alleges that plaintiff is the owner and seised in fee of the described premises, and that defendants claim some estate or interest therein. Defendant Klumpke answered, and besides denying the title of plaintiff set up by way of answer and as a defense that on the first day of April, 1854, James C. Cary was the owner of an undivided one-half interest in the said lot, and on said day executed to one Edward F. Seltzor a mortgage of his interest in said lot to secure the payment of his promissory note to said Seltzor
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for $2,000, payable eight months after date thereof (April 1, 1854), with interest at three per cent per month. Mortgage was duly recorded April 3, 1854, and no part of the principal and interest has ever been paid. The note and mortgage are alleged to have been assigned to defendant Klumpke by Seltzor for value February 4, 1859, and the assignment duly recorded on same day.
Defendant Klumpke, in a cross-complaint, set up the same matters, and prayed, in the usual form, that his said mortgage be foreclosed.
Plaintiff answered Klumpke’s cross-complaint, and, among other things, pleaded that said cause of action was barred by the statute of the state of California, “and particularly by section 337 of the Code of Civil Procedure, and also by sections 319 and 343 of said Code of Civil Procedure.”
The court, at the conclusion of the trial, made findings, and entered a judgment quieting plaintiff’s title as against Klumpke, and denied Klumpke any relief upon his cross-complaint, having found the note and mortgage were barred by the statute of limitations.
Defendant moved for a new trial, which being denied, he appealed from the order as well as from the judgment.
Appellant insists that the court should have directed a foreclosure of his mortgage, and in any event should not have quieted plaintiff’s title as against appellant.
First, as to the foreclosure of the mortgage, appellant urges that the plea of the statute is defective, and that the findings thereon are insufficient. In this he is mistaken. The answer to the cross-complaint distinctly alleges that the cause of action is barred by the provisions of section 337 of the Code of Civil Procedure, which is the appropriate section to plead. The court found that the promissory note mentioned in the cross-complaint is and was “barred by the Statutes of the State of California,” but did not specify by what section of the code, and counsel now insist that this is not sufficient. But in addition to the general finding the court also found “that said claim of the defendant Klumpke, under the mortgage security so assigned to him, is over forty years past due, and has not been prosecuted in any way until the time of the filing of said cross-complaint. ’ ’ This is such a finding of fact as necessarily shows that the action on the note and mortgage was barred by the section píeacted.
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