Cheever v. Fair

5 Cal. 337, 1855 Cal. LEXIS 134

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Heydenfeldt, J., delivered the opinion of 'the Court.

Murray, C. J., and Bryan, J., concurred.

5 Cheever is not charged by the proof with notice of any of the trans- > actions subsequent to the mortgage, and therefore he may have reason to contend, that all the property contained in it, is subject to the payment of his debt; but he does not complain of the decree; and the only question is, whether Fair can insist upon apportioning the liability, between his lot, and Dorr’s.

Fair's conveyance of Dorr’s lot to McCormick, contains.a warranty against his own acts. This warranty runs with the land, and if Dorr’s lot was subjected to the mortgage, the latter would have the right to be reimbursed by Fair, and might maintain an action upon the warranty.

It follows, that Fair has no reason to complain of the decree. If he has any remedy, it must be against McCormick. ,

Decree affirmed.