Mack v. Wetzlar

Temple, J., delivered the opinion of the Court: The statement on motion for a new trial contains no specification of the particulars in which the evidence is insufficient to sustain the findings, nor of the errors in law, upon which plaintiff would rely for a new trial. The one hundred and ninety-fifth section of the Practice Act explicitly provides that, if these specifications are not made, the statement shall be disregarded. [254] If, however, we could regard the specification in the notice-of intention to move for a new trial as a compliance in the requirement of the statute, but one specification is made in it, and that is that the evidence shows that the locus in quo was conveyed by Sutter, Jr., to Brannan, Bruce, Graham and Wetzlar, by deed dated June 20th, 1850; and the Court finds that said deed did not convey said premises to Bran-nan, Bruce, Graham and Wetzlar. That a mortgage does not convey the legal title for any purpose, either before or after condition broken, is well settled in this State. But it is contended that this doctrine is the result of the two hundred and sixtieth section of the Practice Act, which section became a law in 1851, and that the mortgage in question^ having been executed prior to the passage of this Act, is unaffected by it. Doubtless that statute has had its influence in bringing about the adoption of that view; but a careful' examination of the decisions upon that question will show, that they are not based entirely upon the statute, and, indeed, the language of the statute would, of itself, hardly warrant such a conclusion. It declares, substantially, that a mortgage shall not be considered a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the land, without foreclosure and sale. This provision has reference solely to the effect of the mortgage upon the right of possession; but many other consequences were supposed to flow from the common law doctrine, that, after condition broken, the title was vested in the mortgagee, as, for instance, that the mortgage might be foreclosed, notwithstanding the fact that the Statute of Limitations has run against the debt secured by it. In McMillan v. Richards (9 Cal. 365), Justice Field, in delivering the opinion of the Court, places this doctrine not only upon the ground of the statute, but also upon the ground that Courts of law in this country have, by gradual and insensible progress, adopted the equitable view of the subject, and uses this strong language: “In truth, the original character of mortgages has undergone a complete change. They have ceased to be conveyances except in form. They are no longer understood as contracts of purchase and sale [255] .between the parties, but as transactions by which a loan is made, on one side, and security for its repayment furnished, on the other. They pass no estate on the land, but are mere securities—and default in the payment of the money secured, does not change their character.” And in Dutton v. Warschauer (21 Cal. 609), where the precise question was discussed—though, as there was a special concurrence, the point was not decided—Judge Field says : "In McMillan v. Richards, we had occasion to consider the subject at great length, and to observe upon the diversity existing in the adjudged cases. We there asserted, what had previously been held in repeated instances, the equitable doctrine as the true doctrine respecting mortgages, and have since applied it under all circumstances. When, therefore, a mortgage is here executed, the estate remains in the mortgagor, and a mere lien or incumbrance is created.” And, again : "The counsel for the defendant does not controvert the doctrine thus stated as applicable to mortgages executed since the Statute of 1851, but appears to consider! that it was not intended to embrace mortgages previously executed. In this view they are only partially correct. The doctrine was established, not merely from a consideration of the provisions of the statute, but also from a consideration of the real object and intention of the parties in executing and receiving instruments of this kind. In truth, mortgages had long before lost, for nearly all purposes, their common law character as conveyances, and been regarded as transactions by which security was furnished by a pledge of real estate for the payment of debts. Courts of equity had from an early date so regarded them, and Courts of law, by ‘a gradual and almost insensible progress,’ as Kent observes, had adopted the equitable view of the subject, though, we may add, not always carrying the equitable doctrine to its legitimate results.” These extracts show how the case of McMillan v. Richards was regarded by the Justice through whom the decision was pronounced, and that the decisions in this State, which adopt the equitable doctrine of mortgages are not founded wholly upon the statute. [256] Although the opinion of Judge Field, in Dutton v. Warechaiitr, was not assented to by the other .Justices—and, therefore, was not, strictly speaking, authority—it has been universally accepted as law, and the subsequent decisions of this Court are all in harmony with it. The lien which Sutter, Jr., had under this mortgage was not an estate in land. It was neither jus in re nor jus ad remit was a mere right to have the debt paid out of the proceeds of the property, unless it were otherwise paid. This right to hold the land as security would pass by a simple assignment of the debt, but would in no case pass by a conveyance of land alone. Order affirmed. Sprague, J., expressed no opinion.