City of San Francisco v. Lawton

21 Cal. 589

• Court: California Supreme Court
• Decided: July 1, 1863
• Status: Published

Opinion

Field, C. J. delivered the opinion of the Court

Cope, J. concurring.

Upon the foreclosure of the mortgage in this case the plaintiffs were entitled to a decree for the sale of all the rights and interests of the mortgagor. But inasmuch as some of the defendants, so far as the property situated on the corner of Battery and Vallejo streets is concerned, claim adversely to the mortgagor under paramount title from the Mexican Government, confirmed by a patent of the United States, the decree should have reserved their rights. Such was the purport of the previous decision in this case. The decree entered, however, goes beyond the decision, and practically nullifies and defeats it. It directs upon the sale, redemption not being made, a conveyance of the fee and a delivery of possession of the premises thus held adversely to the purchaser, and confers upon him, until redemption made the right to recover the rents, issues, and profits of the land. The decree is in this respect palpably erroneous, and must be reversed. As the parties claiming adversely by paramount title are in possession, the decree must be limited to a sale of the rights and interests which the mortgagor possessed at the date of his mortgage, and the purchaser must, after receiving a conveyance, assert his right to the possession by the ordinary action of ejectment.

Judgment reversed and cause remanded for further proceedings.

On a petition for rehearing the judgment of the Court was modified so as to direct with a reversal of the judgment of the Court below, the entry of a judgment by that Court pursuant to the views expressed in the opinion.