Kearsing v. Kilian

18 Cal. 491, 1861 Cal. LEXIS 238

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

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

Baldwin, J. and Cope, J. concurring.

The mortgage of May to Kenyon was to secure the promissory note of Kilian. In the suit for the foreclosure of the mortgage Kilian was not made a party, and this fact constitutes the ground of the objection urged to the introduction of the record in the suit. Under the decree rendered the sale was made, upon which the plaintiff relies as the source of his title.

There is no force in the objection. Kilian had no interest in the premises at the time the foreclosure suit was commenced and the decree rendered, and no personal claim was made against him upon the note for any deficiency which might remain after the application of the proceeds of the sale to its payment. Under these circumstances he was not a necessary party to the suit.

The position assumed as the basis of the second ground of appeal, that the legal estate was in Kilian by a conveyance from May previous to the execution of the mortgage, is unsupported by the evidence. It is clear from the testimony of Williams, who acted as counsel of the parties, that the deed delivered by May to Kilian was only the original deed executed to May himself, and not an instrument conveying any interest from him. Kilian originally owned the premises, and in 1853 conveyed them by deed to May. The redelivery back of that deed of conveyance in 1854 did not operate to retransfer the title.

Judgment affirmed.