Skinner v. Buck

By the Court, Shafter, J. This is an action of ejectment to recover possession of certain premises situate in the County of Santa Clara. The trial was by the Court, and the findings are to the effect that on the 3d of March, 1850, one Joseph S. Ruckel was seized in fee of the premises described in the complaint, and on that day mortgaged the same to one Wells, which mortgage was recorded four days subsequent to its date. The debt which the mortgage was given to secure fell due May 5th, 1850. On the 20th of July, 1850, Ruckel conveyed to W. GL More-head the whole of the mortgaged premises except Lot Number Twenty. The deed was recorded on the 26th of the same month. On the 21st of October, 1850, Wells instituted proceedings against Ruckel to foreclose the mortgage, and on the 28th of December, 1850, he obtained the usual decree. The plaintiff became the purchaser at the Sheriff’s sale and in due time obtained a Sheriff’s deed. The foregoing are the facts of the plaintiff’s title.

. It is further found that the defendants, on the 7th of October, 1861, acquired by deed of conveyance from Morehead all of the estate and interest which he acquired under the deed of Ruckel to him, July 25th, 1850, and that the defendants were in possession at the commencément of the action.

[255]Judgment was rendered in favor of the plaintiff for a recovery of Lot Number Twenty—that is, for the premises demanded, less the portion conveyed by Ruckel to Morehead, and by him conveyed to the defendants.

The appeal is from the judgmént, and plaintiff claims that on the findings he is entitled to judgment for the whole of the land embraced in his complaint.

This claim is put upon the ground that the mortgage, having been made prior to the Act of 1851 (Prac. Act. Sec. 260,) must be regarded as a conveyance of a conditional estate, to become absolute on breach of condition as at common law; and that the equity of redemption outstanding in Morehead was effectually foreclosed in the action against Ruckel, for the reason that the Practice Act of 1850 (Sec. 309,) in force at the time the suit was instituted, expressly provided that in proceedings to enforce a mortgage it should not be necessary to make other incumbrancers parties, but that the creditor might maintain his action “ against the mortgagor alone.”

The mortgage of Ruckel to Wells was executed prior to the adoption of the common law (April 30th, 1850 ;) but the plaintiff insists that it should be treated as a common law mortgage nevertheless, and for the reason that the civil law prior to the date named had been displaced or superseded by the usages of the people. Without going into the question, we shall assume for the purposes of the argument that the plaintiff’s views upon that point are correct.