De Espinosa v. Gregory
Before: Temple
Synopsis
Appeal from tbe District Court of tbe Third District, Monterey County.
Tbe facts are stated in tbe opinion.
First.- — It is averred in the answer tbat tbe whole tract contains six thousand four hundred'add fifteen and ninety-six one hundredths acres, and it is denied that plaintiff had in possession more than one thousand acres; and yet the Court, in a bill in equity to quiet title, decrees in favor of the plaintiff for the whole quantity and without hearing testimony. This was clearly error. (Rico v. Spence, 21 Oal. 504; Lyle v. Rollins, 25 Id. 437; Ferris v. Irving, 28 Id.-645; Reed v. Galderwoocl, 32 Id. 109.) In a suit toquie'k title to a ranch, it must be considered as brought to quiet title to that portion only of which the plaintiff is in possession, (Gurtis v. Sutter 15 Gal. 254; Sepulvedas. Sepulveda, 39 Id. 13.) And such possession must be an actual possession— a possessio fedis — an actual occupancy and subjection of the land to the will of the plaintiff, to the exclusion of all other persons. (Sepulvedas. Sepulveda, supra.)
Second — Assuming what the motion admits, that the deed of September 7th, 1860, from José Antonio to Carlos Espi-nosa, was intended and understood by the parties thereto as a security for the debt, and that both the debt and the equity of redemption were barred by the Statute of Limitations; still we say, that the Court was in error in giving judgment for the plaintiff on the pleadings, and would have been wrong even if these facts had been established by proper evidence.
By section 260 of the Practice Act, it is provided that “ a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.”
It has been held by this Court continuously from Pierce v. Robinson, (13 Cal. 17,) decided at the April Term, 1859, down to the present time, ‘ ‘ that parol evidence is admissible in equity to show that a deed absolute on its face was intended as a mortgage, and that such evidence is not restricted to cases of fraud, accident or mistake in the creation of the instrument.” (Jackson s. Lodge, 36 Cal. 47.)
And it has further been held, in numerous cases, that “such evidence in this State, under our system of practice is admissible at law as well as in equity.” (Jaclcson v. Lodge, supra; Johnson v. Sherman, 15 Cal. 291; Cunningham v. Hawkins, 27 Id. 606; Hopper v. Jones, 29 Id. 18; Polhemus v. Trainer, 30 Id. 687; Sears v. Dixon, 33 Id. 332; Gay v. Hamilton, Id. 690.)
It has further been decided by this Court, that “in this State it is now well settled by a long and unbroken line of decisions, from McMillan v. Bicharás, (9 Cal. 411,) down to the present time, that the mortgagee has no title or estate in the land, but only a security for a debt.” (Jackson v. Lodge, supra; Naglee v. Macey, 9 Cal. 428; Haffley v. Maier, 13 Id. 13; Johnson v. Sherman, supra; Goodenow v. Ewer, 16 Cal. 461; Fogarty v. Sawyer, 17 Id. 589; Cunningham v. Hawkins, supra; Bloodworth v. Lake, 33 Cal. 264;) and “numerous other cases.”
Temple, J., delivered the opinion of the Court:
Judgment was entered in the District Court for the plaintiff on the pleadings. The action is to quiet title, and the complaint, which is verified, is in the usual form. Exception [62]is taken to the form of the denial in the answer. It commences by stating that the defendant, for answer, says he denies, etc. It is claimed that this is not a denial, but only an assertion on the part of the defendant that he denies. We do not understand that the Court based its decision on this ground. Decisions sustaining this view are found among the earlier cases of New York under the code, and are often quoted as authority here. We take this occasion to overrule those cases as authority in this State. We do not see any point in the argument that, instead of being a denial, it is merely an assertion that he denies. The preliminary statement is intended merely as an introduction, and is equivalent to saying that the defendant for his answer sets up the following defence or defences. First he denies, or admits, or avers, as the case may be; and, in our opinion, the form of expression is entirely unexceptional, and not even open to cavil. If for his defence he says he denies the allegations of the complaint, the Court will not call in question the fact of denial.
The action is brought to quiet plaintiff’s title to certain real estate, and the defendant claims an interest in the prenr ises through a deed from José Antonio Espinosa, dated Octaber 16, 1867. The plaintiff derives title to the premises, in part through a deed from the same José Antonio Espinosa, dated September 7, 1860. This deed is upon its face an absolute conveyance, but the answer alleges that it was executed and, delivered for the sole purpose of securing a certain sum of money which was then a subsisting debt due from Espinosa to the grantee named in the deed. In effect, that the deed was intended as a mortgage, and therefore did not convey the title from Espinosa. It does not appear when the debt secured by this conveyance became due, and the presumption would therefore necessarily arise that it was due immediately, or upon demand, and therefore was barred by the Statute of Limitations at the time this action was commenced.
We have held all that the rights of the mortgagor and mortgagee in such cases are mutual, and that when the debt [63]
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