Fish v. Fowlie

California Supreme Court Jul 1, 1881 No. No. 6,637Published

Before: McKee

AI Brief

AI-generated · verify before citing

Holding. The court held that an intervenor who acquired a judgment debtor's equitable interest in land under a contract of sale is entitled to a conveyance of the legal title upon payment of the balance due, but the mortgage executed by the legal title holders remains a valid lien until such payment is made. The trial court erred in canceling the mortgage outright; instead, it should have ordered the intervenor to pay the balance due to satisfy the mortgage debt, with foreclosure as the remedy for non-payment.

Issues

Whether a judgment debtor's equitable interest in land under an executory contract of sale is subject to levy and execution.
Whether a purchaser of such an interest at a sheriff's sale is entitled to a conveyance of the legal title from subsequent grantees who took with notice.
Whether the trial court erred in canceling the plaintiffs' mortgage rather than conditioning the intervenor's relief on the payment of the outstanding purchase money.

Disposition. reversed

Quotations verified verbatim against the opinion

“Any interest, therefore, in land, legal or equitable, is subject to attachment or execution, levy, and sale.”

“It should have ascertained the amount of the principal and interest due to the defendants for the purchase money paid under the contract of sale, and ordered the intervenor to pay the amount into Court”

Synopsis

Land—Definition—Execution—Attachment.—The term. “land” embraces all titles, legal or equitable, perfect or imperfect, including such rights as lie in contract—those which are executory as well as those which are executed. Any interest, therefore, in land, legal or equitable, is subject to attachment or execution.

Id.—Id.—Id.—Id.—Mortgage.—P. holding a contract to purchase land from G., his interest was sold under execution and purchased by the intervenor, who, after receiving his deed, in due time tendered the balance of the purchase money to G. and demanded a deed. G. refused to receive the money or to make the deed, and in execution of his contract conveyed the land to the wife of F. and to E. F., the wife of one of the plaintiffs—to whom also a tender of the money and a demand for a deed was made by the intervenor. Afterward E. F. conveyed to F. and his wife, and they executed a mortgage to the plaintiffs to secure the consideration for the conveyance.

Held, In an action for foreclosure, that the intervenor, upon paying into Court—to be applied to the payment of the mortgage debt—the amount of the principal and interest due to the defendants for the purchase money paid under the contract of sale, was entitled to a cancellation of the mortgage.

The Court : The opinion heretofore filed in this case by Department One, will stand as the opinion of the Court in Bank.

The following is the opinion rendered in Department One:

McKee, J.: This case arises out of an action brought by the plaintiffs to foreclose a mortgage upon the land in controversy, given by the defendants to secure payment of a promissory note due by them to the plaintiffs.

After the filing of an answer, the defendants took no further part in the proceedings of the case. But before the trial, one Seculovich, claiming the mortgaged premises adversely to both plaintiffs and defendants, intervened in the action, and in .his complaint of intervention alleged that he was the owner of the land at the date of the execution of the mortgage; that the mortgagors had then no title or interest in it; that the mortgage was fraudulent and void, and created no lien upon the land which was foreclosable, and he asked that it be canceled and annulled as a cloud upon his title. All the alllegations of the intervenor’s complaint were denied [375]by the plaintiffs in the action. Upon a trial of the issues made between the plaintiffs and the intervenor, the Court below gave judgment in favor of the latter, and from the judgment and order denying a new trial, comes this appeal.

The mortgage was executed and recorded on the 13th of December, 1876. At that 'date, the intervenor claims that he was the owner of the land, by a compulsory sale and Sheriff’s deed, under a levy made upon the land by an execution issued upon a judgment against the defendant, George Fow.lie. The judgment was rendered on the 24th of January, 1876. Execution was issued thereon and levied January 27th, 1876; and the Sheriff’s sale, under the levy, at which the intervenor purchased the land, was made on the 25th of February, 1876. No redemption having been made, the Sheriff, on the 1st day of September, 1876, conveyed the premises by deed to the intervenor.

The levy was, “upon all the right, title, and interest whiah George Fowlie had in and to the land on the 27th of January, 1876, and thereafter.”

The words “real property” are co-extensive with lands, tenements, and hereditaments. (Subd. 5, § 14, Civ. Code.) Land also embraces all titles, legal or equitable, perfect or imperfect (Leese v. Clark, 20 Cal. 387), including such rights as lie in contract—those which are executory as well as those which are executed. (Soulard v. United States, 4 Pet. 511.) Any interest, therefore, in land, legal or equitable, is subject to attachment or execution, levy, and sale. (Code Civ. Proc., § 688; Kennedy v.Nunan, 52 Cal. 330; Le Roy v. Dunkerly, 54 id. 460.) As a purchaser at the Sheriff’s sale, the intervenor, therefore, became substituted to, and acquired all the right, title, interest, and claim, which the judgment debtor, George Fowlie, had in the land on the 27th of January, 1876—the date of the levy (Code Civ. Proc., § 700), and he was the owner of that interest when the defendants mortgaged the land to the plaintiffs.

Fish v. Fowlie

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief