Duff v. Randall

Harrison, J. Ejectment for certain lands in the county of Humboldt.

The title to the property in question was vested in William R. Duff in 1863, and upon his death, in 1875, the plaintiffs herein succeeded to his interest in the property as his heirs at law. In 1869 he, by his attorney, conveyed the property to Robert P. Duff, who mortgaged it to Huntoon July 19, 1877. In an action by these plaintiffs against Robert P. Duff (the facts of which are found in Duff v. Duff, 71 Cal. 513), it was determined that by reason of the fraud of the attorney, this conveyance did not have the effect to divest William R. Duff of his title thereto. William R. Duff had, however, given to his attorney authority to convey the property, and, although the conveyance was invalid as against William R. Duff and the plaintiffs herein, it was not absolutely void, and a bona fide purchaser for value from the grantee would hold the title as against William R. Duff, or as against the plaintiffs herein. The facts relating to the controversy between the parties hereto are substantially the same as those presented in the case of Randall v. Duff, 79 Cal. 115. The material difference between the present action and that is, that in that action it was shown that the suits for the foreclosure of the mortgages executed by Robert P. Duff to Ritchie and Eiebig were not commenced until after the commencement of the action of Duff v. Duff, supra, and after a notice of the lis pendens had been filed in the office of the county recorder; whereas, in the present case it was shown that the suit of Duff v. Duff, supra, was not commenced until after the property involved herein had been sold to the defendant Randall under the judgment in the foreclosure suit. The suit of Duff v. Duff, supra, was commenced by the plaintiffs herein December 30, 1880. The [228]action to foreclose the Huntoon mortgage was begun August 14, 1880, and judgment was rendered therein October 28, 1880. November 30, 1880, the sheriff sold the property under this judgment to the defendant Randall, who paid the purchase price therefor and received a certificate of sale the same day. The sheriff’s deed was executed to Randall August 18, 1881, and on August 8, 1882, Randall conveyed the property to the defendants Murphy and McAleenan. Neither Randall nor either of the other defendants herein had any notice of the plaintiffs’ claim to the property until after the filing of the notice of Us pendens in the suit of Duff v. Duff, supra. The present action was begun December 12, 1894.

The decision in Randall v. Duff, supra, was given in favor of the plaintiffs herein upon the ground that, by reason of the commencement of the action of Duff v. Duff, supra, before the commencement by Ritchie of his action to foreclose, the purchaser under the judgment in that action had notice of the plaintiffs’ claim, and purchased subject to their rights; but it was said in the opinion given upon the rehearing in that case: “If Ritchie had foreclosed without notice of William Duff’s interest in the mortgaged estate, the foreclosure would have cut off his right of redemption, for precisely the same reason that the mortgage subjected his estate to a lien—for the reason, that is to say, that no man can be allowed to mislead another to his injury.” It is contended by the appellants herein, however, that this expression in the opinion is not conclusive of the present appeal, for the reason that the foreclosure of a mortgage is not complete until the time for redemption has expired and the sheriff’s deed has been executed to the purchaser, and that Randall did not receive the sheriff’s deed until after the commencement of the action of Duff v. Duff, supra.. In support of this proposition counsel for appellants have cited expressions in some opinions to the effect that the term “foreclosure” implies the execution of the sheriff’s deed, as well as the sale under the judg