Webster v. Bd. of Regents of Univ. of Cal.

SHAW, J.

The appeals presented were taken by the defendant from the judgment and from an order denying it a new trial.

In the complaint and judgment the name of the defendant is stated to be “Board of Regents of the University of the State of California.” The notices of appeal state that the appeals are taken by the defendant and its true name is

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“Regents of the University of California.” Respondent moves to dismiss the appeals because of this discrepancy, claiming that there is no appeal on behalf of the party named in the complaint and judgment as the defendant. There is no merit in the motion. The name as given in the complaint and judgment is a misnomer. The true name is that given in the notices of appeal. (Stats. 1867-8, p. 252.) The misnomer in this case is wholly immaterial.

The only question necessary to decide is whether or not, where land is mortgaged to the Regents of the University of California, and a tax-sale and conveyance of the mortgagor’s interest is made to the state and a re-sale and deed thereupon is made by the state to an individual, under section 3897 of the Political Code, such 'sales and deeds operate upon the mortgage interest or lien of the mortgagee and vest title in the tax-sale purchaser free from the mortgage lien. The sales all took place while the constitutional provision was in force declaring that for purposes of taxation the interest, of the mortgagor and that of the mortgagee in the land mortgaged should be distinct interests and separately taxable.

The mortgage to the regents was executed on December 6, 1890, and was duly recorded. The tax-sales to the state were made on July 3, 1897, for the taxes of 1896. The deeds from the tax-collector to the state were made on July 7, 1902. The state controller, on March 20, 1905, directed the tax-collector to sell the lands in pursuance of said sales and deeds. The tax-collector thereupon, on April 18, 1905, sold said lands to the plaintiff and executed to him deeds therefor in due form.

On August 31, 1899, the Regents of the University of California began an action in Alameda County, where said land is situated, to foreclose its said mortgage, making parties defendant thereto all persons interested in the land except itself and the state of California, and notice of the pendency of the action was duly filed on the same day. Process was duly served, or appearances duly entered, and on January 4, 1905, judgment of foreclosure of said mortgage and for the sale of said property was duly given. Said judgment was entered on January 19, 1905. Thereafter on May 16, 1905, said lands were duly sold, in pursuance of said judgment, to the Regents of the University of California. No redemption having been