Merced Security Savings Bank v. Simon

[12]

VAN DYKE, J.

This action is against the executors of William W. Gray and others to foreclose a mortgage executed by the said William W. Gray to the plaintiff on certain premises in Merced County. It is alleged in the complaint that certain portions of the mortgaged premises—four tracts in number—have been released from the operation of the mortgage, and the prayer of the complaint is for a sale of the remaining portion of the land. Defendant Croeker-Huffman Land and Water Company filed an answer, in which it is alleged that subsequent to the execution of the mortgage in suit, said William W. Gray, the mortgagor, executed and delivered to said defendant Croeker-Huffman Land and Water Company a deed conveying a right of way over and across certain strips of land, being portions of the land covered by the mortgage, for the use and benefit of a system of canals and ditches maintained and operated by said defendant in Merced County, which deed was properly acknowledged and recorded, and it is alleged in said answer that at all times thereafter said plaintiff had notice and knowledge of the execution and delivery of the same; that subsequent to the execution of said deed of said right of way, and without the consent of the said corporation defendant, the grantee therein, the plaintiff made, executed, and delivered the releases mentioned and specified in the complaint; that about nine tenths of the land described in the right of way in said deed to the said corporation defendant is not included in the lands covered by said releases. The court sustained a demurrer to said answer interposed by the plaintiff, and entered a decree of foreclosure according to the prayer of the complaint. The appeal by the corporation defendant is upon the judgment-roll.

The main contention on the part of the appellant is, that, as a grantee of the mortgagor of the right of way in question, said defendant had the right to have the portion of the mortgaged premises not covered by said right of way first sold, and that the mortgagee, the plaintiff herein, could not, subsequent to the date of the defendant’s deed, release portions of said mortgaged premises so as to prejudice the right of the said defendant, the appellant herein. In this contention the appellant is clearly right, and is supported by authorities. (Civ. Code, secs. 2899, 3433;

Kent