De Sepulveda v. Baugh

Temple, J. This case seems very plainly to be within the rule laid down in Crosby v. Dowd, 61 Cal. 557.

A tract of 909 acres is described by metes and bounds, “excepting, however, those portions of the above-described tract which are described in those certain conveyances executed by the party of the first part hereto, which are recorded respectively in book 22 of deeds, page 477, book 32 of deeds, page 113, book 36 of deeds, page 446, and book 48 of deeds, page 466, records of Los Angeles County, to which deeds and the records thereof reference is hereby made for further description; the remainder of the tract which is hereby conveyed containing about 719 acres.”

This description is in the mortgage, complaint on foreclosure, the decree, sheriff's certificate, and deed, and nowhere except by the above reference is there any description given of any of the excepted tracts.

The record of the foreclosure therefore contains no description from which it can be ascertained without such reference, no matter how familiar one might be with all the descriptive calls given as to any specific portion of the described land, whether or not it was conveyed by the mortgage deed, or whether the decree is operative upon it. Nor could he tell whether any portion of the metes and bounds of the nine-hundred-acre tract remains as any portion of the metes and bounds of the seven-hundred-acre tract.

This case is attempted to be differentiated from Crosby [471]v. Dowd in this: In Crosby v. Dowd the only description of the property in the complaint or decree was a reference to three deeds in the recorder’s office. Here the mortgage, complaint, decree, certificate of sale, and sheriff’s deed alike described a large tract of land by metes and bounds excepting therefrom certain sold portions as above stated; that is, in the former case reference is made to the record for a description of the land mortgaged, while in the case at bar reference is made to the records for a description of certain portions of the described tract which are excepted from the effect of the mortgage and decree.

A mere statement of this contention would seem to go a long way toward answering it. There is evidently the same indeterminateness in regard to this description as in the other, and the sheriff would be no better able to find the land or to determine what lands he should put a purchaser in possession of. And there is the same possibility that when the deeds were examined they would be required to be construed by a court to determine what lands were included.