Bowen v. May

12 Cal. 348

• Court: California Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Terry, C. J.,

delivered the opinion of the Court—Field, J., and Baldwin, J., concurring.

The provisions of the thirty-second section of the Practice Act, which, in an action against two or more defendants, all of whom are not served with process, authorizes judgment to be entered to bind the joint property of all, does not apply to proceedings for the foreclosure of a mortgage on real estate.

The fact that two persons join in a mortgage of lands does not raise a presumption that the estate conveyed is joint property. Joint tenancies are not favored by our system—the statute having abrogated the common law rule of conveyances in this respect—so that in order to constitute a joint estate in lands in two or more persons, such estate must be expressly declared in the conveyance itself, otherwise the estate conveyed will be held by the grantees as tenants in common. Wood’s Dig., art. 380.

Judgment reversed and cause remanded.