Huling v. Abbott

Thornton, J. — Action to foreclose a mortgage on a parcel of land situate in Humboldt County. Defendant Abbott was the mortgagor. Abbott made default, judgment of foreclosure was made and entered against defendants, and from this judgment defendant 'Bull alone prosecutes an appeal. The following facts are found: On July 7, 1885, Abbott was the owner of the tract of land which he, on the 28th of July, 1886, conveyed to plaintiff by mortgage to secure the payment of a debt due by Abbott to the plaintiff. Abbott’s title to [426] this land was derived under a certificate of purchase from the state of California bearing date the day first above mentioned. On the 28th of July, 1886, Abbott assigned his certificate of purchase, and all his title in the land mentioned therein, to one M. H. Crissmon, who purchased with actual notice of the existence of plaintiff’s znortgage. On April 15, 1887, Crissmon assigned the certificate of purchase and all his title in and to said lands to C. C. Fitzgerald. Fitzgerald purchased with actual notice of the existence of plaintiff’s mortgage, and agreed, as part consideration for the assignment, to pay at maturity the debt secured by the mortgage, and for this pui’pose retained in his hands from the purchase price the full amount of the principal and interest due on the debt. On July 1, 1887, Fitzgerald assigned the certificate of purchase, and all his title to said lands, to one B. W. Bideout, who at the time of his purchase had no knowledge of the existence of plaintiff's mortgage. Thereafter, Bideout, while the owner of the land, received from the state of California, as assignee of the certifícalo of purchase, a patent for said lands. The plaintiff placed the mortgage on record in the proper office in- í>he county of Humboldt on the nineteenth day of September, 1887. On the 20th of October, 1887, and while the mortgage of plaintiff was of record, Bideout conveyed the lands described in the certificate of purchase above mentioned to the above-named C. C. Fitzgerald. On the second (Jay of January, 1888, Fitzgerald conveyed to the defendant Bull (appellant here) the lands above referred to. At the date of the conveyance last named, Bull had full notice of the record of plaintiff’s mortgage, and of the execution and existence of such mortgage.. On the facts above stated, the court rendered judgment in favor of plaintiff. We think the judgment should stand. When Fitzgerald, who was the grantor of Bideout, and who had actual notice of plaintiff’s mort [427] gage when he purchased and at the time he conveyed to Rideout, received a conveyance from the latter, he occupied the same position he formerly did; viz., that of a purchaser with notice of plaintiff’s rights and equities, lie was not protected by the fact that Rideout, his grantor, was an innocent purchaser. (Talbert v. Singleton, 42 Cal. 391; 2 Devlin on Deeds, sec. 748; 2 Pomeroy’s Eq. Jur., sec. 754.) When Fitzgerald secured the conveyance from Rideout, he occupied the same position he did when he purchased from Grissmon,—that of a purchaser with notice of and bound by all the equities of Huling. The court finds that Bull took his conveyance from Fitzgerald with full notice of plaintiff’s equities. We cannot see in what way the conclusion can be avoided that plaintiff had a right to enforce his rights against Bull. It may be further observed that it does not appear that Bull paid any money on his purchase, lie must, then, be held to occupy the same position that Fitzgerald did, and alike subject to the enforcement of plaintiff’s rights. Judgment affirmed. McFarland, J., and Sharpstein, J., concurred.