Coddington v. Hopkins

SANDERSON, C. J. This is an action to foreclose a mortgage. Only one of the defendants, Lyman Fish, appeared in the action, who -demurred generally to the -complaint alleging that the same did not state facts sufficient to constitute a cause -of action. The complaint is in the usual form in such cases, and alleges that Lyman Fish, among others, has or claims to have some interest or lien upon the mortgaged premises or a part thereof, which interest or lien, if any, was acquired by him subsequent to the lien, of the mortgage in suit. The complaint contains a full copy of the mortgage in which the premises are described as follows: .

“All that piece or parcel of land consisting of one hundred and sixty (160) acres, with one grist mill and one saw mill combined, situated near the mouth of Mad river and called the Mad river Mills.”

[200]The ground of the demurrer is that this description is fatally defective and that the mortgage is therefore void, as against the appellant at least, for uncertainty. The demurrer was overruled by the court below, which the appellant claims was error.

It is argued that the description is bad because neither the state, county or township in which the land is situated is designated, nor any corners, posts, monuments or initial points, or lines, courses, or distances given by which the location of the land can be ascertained, or its quantity measured and segregated from that adjacent thereto.

It appears from the complaint that the mortgaged premises are situated in Humboldt county, and that the mortgage was duly recorded in that county. It also appears from the mortgage itself that the mortgagors and mortgagees were all residents of that county at the time the mortgage was executed.

The question attempted to be presented by the demurrer is Avhether under these circumstances the description of the premises was sufficient to import notice to Fish at the time he acquired his interest therein and consequently whether anything passed by the mortgage as against him. Although it is not suggested by the respondent, we think it doubtful whether this question can be properly made in this action. This action does not try the title to the mortgaged premises or any part thereof, but merely forecloses the lien of the mortgage as to whatever estate may pass by the description Avithout determining whether any estate whatever has passed to the mortgagees. The decree follows the description given in the mortgage, and so will the sheriff’s deed if no redemption is made. When the purchaser seeks to obtain possession of the land the title Avill come in issue and Fish can then properly make the defense which he attempts to make n.ow, and such defense can be in no respect prejudiced by any proceedings had in this case. The mortgagees are entitled to have their mortgage foreclosed as it is written, for if any estate does pass by the mortgage decree and deed, they are entitled to it. If nothing passes, the whole proceeding from the commencement to the end is without consequence, and the only parties injured are the mortgagees: Tryon v. Sutton, 13 Cal. 490.