Kirkaldie v. Larrabee

By the Court, Sawyer, J.: Had the deed been an absolute conveyance in fee instead of a mortgage in fee, any subsequently acquired title, under our statute concerning conveyances, would have inured to the benefit of the plaintiff. (Sec. 33.) The fact that the title subsequently comes from the United States would make no difference. There is nothing in the Homestead Act of 1863 forbidding a voluntary alienation by the grantee under that Act. The same principle applies to a mortgage of the fee. (Clark v. Baker, 14 Cal. 630.) The title will pass not merely in consequence of the enforcement of the payment of a debt by the ordinary process of the Courts, but in consequence of the voluntary contract of the party in executing the mortgage. The mortgagor of the fee is estopped from denying the existence of the lien which he has attempted to create, and from defeating by his own act the enforcement of the lien against the property thus mortgaged. (14 Cal. 633-4; see also Tartar v. Hall, 3 Cal. 263; Haffley v. Maier, 13 Cal. 14; Whitney v. Buckman, 13 Cal. 538; Warburton v. Mattox, Morris, [Iowa,] 369; Pierson v. David, 1 Clarke, Iowa, 26; Camp v. Smith, 2 Minn. 173; Hope v. Stone, 10 Minn. 141; Bush v. Marshall, 6 How., U. S., 288; Threadgill v. Pintard, 12 How. 37; Fackler v. Ford, 24 How. 323; Phelps v. Kellogg, 15 Ill. 135.) We think the plaintiff was entitled to the ordinary judgment [458]for a sale of the mortgaged property without any exception of rights subsequently acquired by the mortgagor under the Homestead Act of 1862.

Judgment reversed and the District Court instructed to enter judgment in accordance with these views.