Christy v. Dana

California Supreme Court Oct 15, 1871 No. No. 1,498Published

Before: Crockett

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Holding. A mortgage on public land remains enforceable against the land even if the mortgagor is subsequently discharged from personal liability in insolvency proceedings, and a title later acquired by the mortgagor via patent inures to the benefit of the mortgagee.

Issues

Whether a mortgage on public land is enforceable after the mortgagor's discharge in insolvency.
Whether a subsequently acquired patent title inures to the benefit of the mortgagee.
Whether the plaintiff was required to present a claim to the administratrix when seeking no relief against the estate.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is evident the plaintiff was entitled to enforce his mortgage as against the land, notwithstanding the personal liability of Dana for the debt may have been barred by the discharge.”

“inasmuch as no relief is demanded against the estate, and the intestate, at the time of his death, had no interest in the land, there was no need for the plaintiff to present his claim to the administratrix for allowance.”

“inasmuch as Dana had no title to the land at the date of the mortgage, the title which he subsequently acquired by means of the patent did not inure to the benefit of the plaintiff as mortgagee. This is no longer an open question”

Synopsis

Enforcement of Mortgage.—A mortgagee may enforce his mortgage as against the land, notwithstanding the personal liability of the mortgagor, for the debt may be barred by a discharge in insolvency.

Pleading Conclusion of Law.—An averment in an answer that the plaintiff’s debt is barred by a discharge in insolvency, is only a conclusion of law, and not the statement of a fact.

Interest on Claims against Insolvent Estate.—Section one hundred and thirty-one of the Probate Act, which provides that when the estate is insolvent a creditor can only recover interest at the rate of ten per cent after the letters of administration issue, cannot be invoked by a purchaser of the mortgaged property who buys from the mortgagor after the mortgage is given, and who is made a party in an action to enforce the mortgage. Said section is intended only for the benefit of the estate, and if the complaint waives a judgment for a deficiency, the estate has no interest in the matter.

Enforcing Mortgage after Death of Mortgagor.—If the mortgagor sells the land after he gives the mortgage, and then dies, the mortgagee may enforce his mortgage as against the subsequent purchaser without : presenting his claim to the administrator for allowance.

Evidence of Actual Notice of a Mortgage.—When the mortgage is recorded, so as to give constructive notice to a subsequent purchaser, there is no need of proof of actual notice in an action to enforce the mortgage.

Title Acquired by Mortgagor Feeds his Prior Mortgage.—If a mortgagor mortgages public land upon which he is residing, and after-wards obtains a patent to the same from the United States, and then sells, the title acquired by the patent inures to the benefit of the mortgagee, and the mortgage may be enforced against the subsequent purchaser.

Declarations oe the President oe a' Corporation—Evidence.—The declarations of the President of a corporation may be received in evidence to show that at the time the corporation purchased land it had actual notice of a mortgage on the same.

By the Court, Crockett, J.: This is an action tp foreelpse a mprtgage made by B. 0. Dana, deceased, in his lifetime, tc the plaintiff, upon a tract of land which at the time was a part of the public domain, but upon which Dana resided, and which he proposed to claim as a preemptor. The land is described in the mortgage as “ fragment of southwest quarter of section twenty-four, and fragment of northwest quarter of northwest quarter, of section twenty-five, township ten north, range seven east, Mount Diablo meridian, being a possessory claim under the statute of California, said land containing one hundred and twenty-five acres, more or less, and being the only possessory claim held by said party of the first part in said county.”

The mortgage was dated March 3d, 1863, and was duly recorded March 9th, 1863. On the 12th of May, 1865, Dana duly filed his petition for the benefit of the insolvent laws, and after proper proceedings obtained his final discharge on the 25th of February, 1866. Dana’s preemption claim being perfected, the plaintiff furnished the money to pay the Gov[176]ernment price for the land, and the patent was issued to Dana April 13th, 1866. On the 30th of April, 1866, Dana and his wife conveyed the land, by absolute deed, to the defendants, The Natoma Water and Mining Company, for a valuable consideration, describing the land in the deed as “fractions numbered four and five of section number twenty-four, and fraction number one of section number twenty-five, township ten north, range seven east, Mount Diablo base and meridian.” From the proof and findings it appears that the land included in the deed is the same land embraced in the mortgage to the plaintiff. On the 5th of May, 1866, E. 0. Dana died intestate, and on the twenty-second of the same month his widow, the defendant, Julia E. Dana, was duly appointed administratrix of his estate. There is a provision in the mortgage to secure the repayment of any money which the plaintiff might pay for his greater security in procuring the title to the land, or otherwise, and for a reasonable attorney’s fee in the event of a foreclosure.

The action is brought against the administratrix and against The Natoma Water and Mining Company; and the complaint prays for foreclosure of the mortgage and a sale of the land, but expressly waives a judgment against the estate for any deficiency.

The administratrix, in her answer, admits the allegations of the complaint and consents to a judgment of foreclosure as prayed for. The answer of The Natoma Water and Mining Company denies that the land included in the deed is the same land embraced in the mortgage, and denies that the whole mortgage debt remains unpaid; but admits that ' the plaintiff’s claim was presented to the administratrix for allowance, and denies that at the time it was presented she was acting as such administratrix, and also denies that the plaintiff paid the money to the Government, as he alleges.

Christy v. Dana

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