Burton v. Lies

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

The plaintiff sold to the defendant Lies certain real estate, and took from him a mortgage to secure the payment of $4,000 of the purchase money. Lies sold the property to one Lefevre, subject to the mortgage, and subsequently received back a conveyance of a portion of the premises. Lefevre died soon afterwards, and the defendant De la G-uerra is the executor of his estate. The plaintiff brought his action for the foreclosure of the mortgage, making Lies and the executor parties defendant, obtained the usual decree for the sale of the premises, became the purchaser at the sale, and, no redemption having been made within six months after-wards, received the Sheriff’s deed. With this deed he demanded possession of a part of the property sold from the widow of Lefevre, who was at the time in its occupation, and the possession having been refused by her, he applied to the Court for a writ •of assistance. The application was resisted by the widow, who .alleged that she occupied the premises by virtue of a lease from one Thompson, and that he owned an undivided half of the same, by purchase from certain parties made in 1837. The Court denied the writ; and hence the present appeal.

It would seem that the premises in the possession of the widow [91]constituted the common property of Lefevre and herself. They were purchased by him during the existence of the community, and the presumption attending the acquisition by purchase of property, during that period, by either husband or wife, is that it belongs to the community. (Meyer v. Kinzer, 12 Cal. 251.) Upon the death of Lefevre, one undivided half therefore passed absolutely to her, subject to the lien of the mortgage, and to the payment, with other property, of his debts. (Payne v. Payne, 18 Cal. 291.) She should, in consequence, have been made a party defendant in the action for the foreclosure of the mortgage. The general rule is, that all persons beneficially interested in the mortgaged property at the commencement of the action must be made parties, in order that complete justice may be done, and that a clear title may pass under the decree. The purchaser takes a title only as against the parties to the action; and hence, for obvious reasons, persons claiming as the survivors, devisees or heirs of the mortgagor, or as subsequent purchasers or incumbrancers, at the time the suit is instituted, should be brought in. (Montgomery v. Tutt, 11 Cal. 314.)

Executors and administrators, it is true, under our system take possession of all property, real and personal, of the deceased whose estates they represent, and have the right to the possession of the same until the estates are settled or distribution is directed by the Probate Court; and, in consequence, have until then the sole right to maintain actions of ejectment for real property of the decedents withheld from them. (Meeks v. Hahn, 20 Cal. 620.) But the action for the foreclosure of a mortgage is not brought for the possession merely of the property, except as such possession may follow the Sheriff’s or Master’s deed, but is brought to subject to sale the title of the mortgagor—that is, such title as he had at the date of his mortgage—and to cut off all the rights of parties subsequently becoming interested therein. Executors and administrators do not possess the title, but only a temporary right to the possession of the property.