Henderson v. Grammar

McKinstry, J. —William and Jacob Morse paid one-fifth of the purchase price of certain swamp lands, receiving three certificates of purchase from the proper officer, and then conveyed the lands to Nathaniel McTucker. The latter mortgaged them to Jacob Morse (by whom such mortgage and the note it was given to secure were transferred to plaintiff), and subsequently mortgaged the same lands to John McTucker. Nathaniel McTucker assigned and delivered two of the certificates of purchase to John ; and after the latter’s death, assigned and delivered the third certificate to his widow, now Mary Grammar, defendant. Afterwards plaintiff commenced an action to foreclose his mortgage, but failed to make the heirs or representatives of John McTucker parties, although the mortgage to John McTucker had previously been recorded. The assignments of the certificates of purchase had not been recorded, and the court found plaintiff had no notice of them when he commenced his action to foreclose his mortgage. In that action a decree in the usual form was entered May 18th, 1871.

On the 13th of September, 1871, defendants herein, alleged heirs of John McTucker, paid to the State the balance of the purchase money, surrendered the certificates of purchase, and received patents for the lands. Under the foreclosure decree the sheriff sold all the right, title, and interest of Nathaniel McTucker to the plaintiff herein, and no redemption having been had, executed to said purchaser a deed of the lands, bearing date October 1,1872.

On the former appeal, the Supreme Court said: “ Nathaniel McTucker having been the actual holder of the certificate No. 744, at the time of the foreclosure of plaintiff’s mortgage, and. [334]the assignments of the other certificates from Nathaniel to John McTucker not having been recorded, the foreclosure of plaintiff's mortgage and the sale thereunder had, under the statute, the same effect upon the title as though the heirs of John McTucker had been parties to the foreclosure proceedings. In this view the only relief which the defendants can have in this action, if any, must proceed upon their rights as junior mortgagees, or for expenditures in perfecting the title; and in the present condition of the answer, such relief cannot be had.” (53 Cal. 652.)

The record now here discloses the same facts with reference to the certificates and their non-registration, as were before the court on the former appeal.