Irvine v. Perry
Before: Searls
Synopsis
Foreclosure of Mortgage—Subordinate Liens—Sale of Parcels by Mortgagor-Order of Sale Subject to Just Rights.—The entire rule established by section 299 of the Civil Code, respecting the order of sale of the mortgaged premises, in case of transfer of parcels thereof, and of subordinate liens not coextensive with the mortgage, applies, under the terms of the statute, only where it can be followed without injustice to other persons.
Id.—Sale in Inverse Order—Assumption of Mortgage Debt by Grantee. The doctrine of selling mortgaged property, which has been alienated by the mortgagor, in the inverse order of alienation, is not unyielding; and where, upon a sale of part of the premises, the grantee has bound himself to pay the mortgage debt, or a proportionate part thereof, the portion purchased by him becomes in his hands and in the hands of those holding under him with notice, primarily chargeable with the mortgage debt, or such proportionate part thereof as he may have agreed to pay, as against the mortgagor, and as against subsequent purchasers of other parcels of the mortgaged premises.
Id.—Costs—Discretion—Appeal.—The costs in an action of foreclosure are in the discretion of the court, and, where the evidence is not returned upon appeal, it cannot be said that there was an abuse of discretion.
Id.—Attorney’s Fees—Stipulation—Limitation of Mortgage Security.— Where the mortgage purports only to secure the payment of a promissory note, and does not purport to secure the payment of attorney’s fees, a stipulation in the mortgage for counsel fees at the rate of ten per cent upon the amount due, does not authorize the making of such fees a lien upon the property or the inclusion of them in the decree of sale.
SEARLS, C. This appeal is taken by F. C. Martin, one of the defendants in the above-entitled cause, from a decree of foreclosure of four mortgages. The cause comes up on the judgment-roll, without any statement or bill of exceptions.
On the second day of June, 1890, the defendant, John A. Perry, being the owner of five lots or parcels of land situate in Monterey county, designated as lots Nos. 10, 11, 55, 56, and 93 of the Rancho Buena Vista, mortgaged all thereof to Samuel Irvine, the plaintiff herein, to secure the payment of a promissory note for $4,000 and interest. The mortgage was duly recorded June 9, 1890.
November 10, 1890, Perry, the mortgagor, sold and conveyed all the lots to defendant D. G. McLean. Deed recorded on day of its date.
November 36, 1890, McLean conveyed lot 10, containing say 63 acres, to defendant Warren F. Meeker. Deed recorded January 31, 1891. Meeker, as a part of the consideration for the conveyance to him, agreed with McLean to pay $8 per acre on said lot toward the payment of plaintiff’s mortgage.
April 17, 1891, McLean conveyed lot 11 to defendant and appellant herein, F. C. Martin. Deed recorded April 38, 1891.
The negotiations for the purchase by Martin were made by and through defendant John A. Perry, who represented to appellant Martin that he, Perry, was the owner of lot 11, and that it was free from encumbrance, which fact was believed by Martin, who had no actual notice of plaintiff’s mortgage, which mortgage, however, was of record. Martin caused no search of the records to be made and made no effort to ascertain the true condition of the title. Plaintiff was not a party to these negotiations and was not cognizant thereof. Martin has paid Perry $3,400 on account of the purchase price of lot 11, and still owes him, Perry, $500 on account thereof.
April 17, 1891, defendant McLean sold lot 55 to defendants Merritt J. Hall and I. E. Hall, and all of lot 56 to said Merritt J. Hall.
November 14, 1891, defendant D. G. McLean and Susan McLean, his wife, conveyed to defendant John A. Perry lot 93. Deed recorded November 17, 1891.
January 5, 1893, John A. Perry conveyed a portion of said lot [35492], containing say fifteen acres, and duly described, to defendant Benoist. Deed duly recorded. The several purchasers entered into possession and have paid taxes, etc. The ownership by defendants of each of the above enumerated parcels of land is subsequent and subordinate to plaintiff’s mortgage.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)