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tachment, provided, of course, he can and mortgage or prosecuting a judgment of foreclodoes specify in his affidavit the amounts of sure.' Doubtless this provision of the statute the indebtedness and some statutory ground would have furnished a sufficient ground for for attachment” There the affidavit alleged dissolving the attachment, had it been urged in the exact amount of indebtedness, which was the foreclosure action ; and perhaps it might on an unsecured claim. Here the appellant have furnished a ground for reversing the by foreclosure is primarily subjecting the foreclosure judgment, had an appeal theremortgaged property to the payment of secur- from been taken. But such proceedings were ed notes. It claims no remedy under the voidable, not void, and to attack them in this writ of attachment until it shall first exhaust way is to attack the judgment collaterally, the property covered by its mortgage. It where error, merely, cannot avail." Here the does contend, however, that by reason of the respondent moved the trial court to dissolve inadequate value of the mortgaged property the attachment on the ground that it was isit will be entitled to a deficiency judgment sued while the appellant was proceeding with for at least $300, and that it is now entitled the foreclosure of its mortgage. In view of to a writ of attachment in advance of such the inability of the appellant to anticipate the judgment to secure the same. It cannot exact amount of any deficiency judgment to know that the contingency of a deficiency

which it may or may not be hereafter enjudgment will ever arise : for, while it may

titled, or to state the same in its affidavit for be unwilling to bid the full amount of its

attachment, and in view of our construction claim at foreclosure sale, some other person

of section 5893, we hold that the trial judge may do so.

rightfully sustained the motion to dissolve. Although appellant has by contract extend- The judgment is affirmed. ed credit to respondents on the notes and mortgage, it is now pursuing two remedies at

HADLEY, C. J., and RUDKIN and MOUNT, one and the same time-one by foreclosure JJ, concur. on the mortgaged property, and the other by attachment of additional property to secure a

(151 Cal. 451) possible deficiency judgment. How can it, in

LAMB v. WEBB, Atty. Gen., et al. (L. A. advance of such deficiency judgment, which

1,861.) it may never obtain, comply with section

(Supreme Court of California. July 29, 1907.) 5351, Ballinger's Ann. Codes & St., which requires that the affidavit for attachment sball In Bank. On rehearing. Denied. specify the amount of indebtedness. VVbile

For majority opinion, see 991 Pac. 102, it is true that, strictly speaking, an attachment is not a separate action, but an ancil

PER CURIAM. Rehearing denied. lary proceeding, it would, if resorted to be

BEATTY, C. J. I dissent from the order fore judgment, be an additional remedy not contemplated in foreclosure proceedings un

denying a rehearing of this cause, for the reader our statutes. The evident spirit and in

son that the questions which the department

bas deemed it unnecessary to decide are the tent of section 5893 was to prevent plaintiffs

only questions presented by the record, while from harassing defendants in foreclosure ac

the ground upon which the decision is rested tions, with ancillary proceedings prosecuted

—the assumed exercise by the Attorney Genbefore judgment, for the purpose of seeking

eral of his discretion in deciding a question additional and concurrent remedies other

of fact--is shown by the record to have no than those authorized by statute or arising

existence. All the allegations of the petition in the usual course of proceilure. It was to

for the writ of mandate are admitted to be prohibit a mortgagee securing by writ of at

| true. They show, among other things, that tachment or otherwise an additional remely

there are certain standing rules of the Atin anticipation of a deficiency judgment,

torney General's office governing applications while looking to the mortgage security, and

for leave to sue in the name of the people, before exhausting the same by foreclosure

and that this petitioner, in presenting his apand sale. In Rohrer v. Snyder, 29 Wash. plication for leave to sue, complied in every 199, 69 Pac. 7-18, it was contended that a

particular with the rules. One of their remortgagee could not by attachment pursue an

quirements is that the relator must produce independent remedy for the collection of the

with his application the sworn complaint mortgage debt while foreclosing. The valid- which he proposes to file, and they require ity of the attachment was not raised in the nothing more for the purpose of satisfying original foreclosure proceeding in which the

the Attorney General that there is a meritorwrit had issued, but was raised in the col

ious cause of action. In this instance a lateral action, being the one then on appeal.

sworn complaint was presented with the apIn passing upon the appellant's contention we plication for leave to sue. If the Attorney said: "The second [contention] is based upon General was not satistied of the good faith section 5893 of the Coule Ballinser's Ann. of the petitioner, or of the truth of the matCodes & St. It is there provided that a mort- ters alleged on his information and beliefgagee shall not prosecute any other action for matters which in cases of this kind tan rarethe same matter while he is foreclosing his ly be within the personal knowledge of the relator-it would seem that he should have on his selling and giving possession to the vendee given him an opportunity of supporting his

of a small part of the other land within the

inclosure.. petition by corroborative affidavits, and no doubt he would have done so if he had deem

In Bank. Appeal from Superior Court, ed it material. But he did not consider this

Santa Barbara County; J. W. Taggart, matter at all. He did nothing in the exer

Judge. cise of that discretion which the court as

Action by Nathan T. Cory against the sumes that he exercised in denying the ap

Santa Ynez Land & Improvement Company plication, and this is affirmatively shown by

and another. From a judgment for plaintiff. the record. The petition sets forth a copy

and from an order denying a new trial, deof the written opinion of the Attorney Gen

fendant company appeals. Reversed. eral, giving his reasons, and his only reasons, for denying the application. In that

C. P. Robinson and W. S. Day. for appelopinion he assumes the truth of erery fact

lant. Wm G. Griffith, for respondent. alleged in petitioner's complaint and refuses leave to sue upon the ground, first, that the BEATTY, C. J. This is an action of trescomplaint does not state a cause of action, pass, in which the plaintiff recovered a judg. and, second, if there ever was a cause of ment for $368.50 and costs. The corporation action the petitioner ought not to be allowed defendant appealed to the District Court of to maintain it after having been a candidate Appeal from the judgment, and from an orat the special election. Whether these were der denying a new trial. The justices of good reasons for refusing leave to sue, and that court having been unable to agree as to whether in any case the Attorney General may the proper disposition of the appe:1, the he compelled by mandamus to grant leave to cause was transferred to this court for hearsue in the name of the state, were the ques- ing and decision. tions really involved in the appeal; but they It appears from the pleadings and the unare not decided, because it is assumed that contradicted evidence in the record that, the Attorney General was not satisfied of prior to the 28th of January, 1888, the appelthe existence of facts which he has made the lant had subdivided a large tract of land in basis of his written decision, and its sole Santa Barbara county, and that on that date basis.

it conveyed to J S. Shoeinaker, then a resident oť Reno, Yev., a subdivision known as

lot No. 13, containing 40 acres. The agreed (151 Cal. 778)

price of the lot was $3,000, of which $1,000 CORY V. SANTA YNEZ LAND & IMP. CO.

were paid at the date of the conveyance. et al. (L. A. 1.898.)

For the balance Shoemaker executed two (Supreme Court of California. Aug. 23. 1907.) i promissory notes for $1.000 each, payable

respectively January 20, 1900, and January 1. MORTGAGES MORTGAGEE IN POSSESSIOX. Where a mortgagor places the mortgagee

20, 1901, and secured by mortgage of the in possession of mortgaged premises as addi- land. Shoemaker leased the land to tenants tional securi-y, the mortgagee thereby acquires who occupied it until the year 1892. In the the right to retain possession as long as the sa

meantime, he had paid no part of the princured debt is unpaid, though foreclosure be barred by limitations.

cipal or interest of the two purchase-money 2. SAME-EVIDENCE.

notes, and in May, 1893, they had been placed Evidence in trespass held to show that de- in the hands of defendant Robinson for forefendant, the mortgagee of the premises, was in possession by the tacit, if not express, agree

closure. He. as agent and attorney for the ment of the mortgagor, for the purpose of ad

appellant, agreed with Shoemaker at that ditional security.

time to cancel the first note and to remit the 3. SAME-FORFEITING RIGHT-INITIATING AD- accrued interest on both notes amounting to VERSE CLAIM.

$180, upon the agreement of the latter to A mortgagre in possession may, without forfeiting his right of possession, initiate an

pay the second note in the course of eight adverse claim, which will ripen into a prescrip

or ten months. This agreement was ratified tive title, in default of redemption.

by the corporation and the first note can4. SAME-RIGHT OF MORTGAGOR TO MAINTAIN celed. Robinson testifies that it was at the TRESPASS-REGALXIXG POSSESSION.

same time agreed by Shoemaker that appelThe right to maintain trespass against the mortgagee in rightful possession was not gained

lant should have and maintain possession of by the mortgagor entering the inclosure of the the mortgaged premises until the remaining mortgagre, which included other lands in adli

note was paid. Shoemaker denies that he tion to those mortgaged, pitching a tent on the mortgaged land, and marking the corners of it,

made any such agreement, but the undisputand commencing to set fonce posts, he then be

ed fact is that the corporation, through its ing notified by the mortg:gee that he was tres- agents, took possession of the lot about that passing, and warned to desist, and, lisregarding

time, and for fully 10 years kept the undisthis, being forcibly removed with his belongings 20 days after his entry.

puted possession through tenants rendering 5. SAME-EVIDENCE OF MORTGAGEE'S POSSES

rent to it. It is also an undisputed fact SION.

that the appellant permitted the second note The inclosure by a mortgagee of the mort. to become barred by the statute of limitations gaged land, with other lands belonging to the

on January 20, 189.7, without any attempt to mortgager, does not coase to be -viilence of possession of the mortgaged land by the mortgagee

foreclose, and that afterwards, on Febru

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ary 27, 1895, Shoemaker gave a new mortgage to secure a new note for $1,050, the amount of the second note and accrued interest. At the date of this new note and mortgage, the appellant was in the peaceable and undisputed possession of the land. No part of the principal of this renewal note was ever paid, and only part of the interest. In August, 1899, the right to foreclose was barred. But the corporation had been in possession all the time by its tenants and in receipt of the rents, and as its mortgage interest exceeded the assessed value of the land it paid all the taxes. Matters remained in this posture until 1901, when the appellant directed the assessor to omit any further mention of the mortgage, and to assess the land to it as a part of the larger tract of which it was a subdivision. In 1902 Shoemaker had the land assessed in his name, but down to the trial of this action in 1905 the appellant had paid all the taxes. In view of these facts it is difficult to believe that Shoemaker did not expressly agree, as testified by Robinson, that appellant should take and hold possession of the land, and it cannot be doubted that there was at least a tacit agreement to that effect. If not, why did Shoemaker, for a period of 10 years, acquiesce in such possession, actual, open and unequivocal? Men in their senses do not allow their land to be unlawfully occupied by other persons for so long a period without some sort of protest, and it must be concluded on the evidence that in October, 1903, the appellant was a mortgagee in lawful possession of the mortgaged premises, unless, as seems to be contended. its direction to the assessor in 1901, to omit any mention of the mortgage in assessing the land to it, deprives it of that status. When the respondent, as agent of Shoemaker, went upon the land for the purpose of taking and holding possession, October 20, 1903, the larger tract, 435 acres, of which lot 13 was a part, was completely inclosed by a fence sufficient to turn stock, and had been cultivated that season by tenants of the appellant. The crops, however, had been harvested, and it was being used only for the pasturage of stock. All the land within the large inclosure, except lot 13 and a similar subdivision which had been sold to a third party, belonged to appellant. Respondent under these circumstances entered the large inclosure with a camping outfit and a kit of carpenter's tools. He pitched his tent on lot 13, and proceeded to cut from trees growing on the premises posts for a fence. He had marked the corners of the lot, and was engaged in setting the fence posts. when, about a week after his entry, he was notified by agents of the appellant that he was trespassing and warn. ed to desist. He disregarded this and other warnings, and on the 10th of November was, by order of the appellant, forcibly removed from the land with all his belongings. These

are the salient facts of the case, and it minor circumstances do not alter their complexion. The motion of appellant for a new trial wis based upon the grounds that the verdict was not sustained by the evidence and that the court had erred in its instructions to the jury As to the principal question of law arising upon the facts above stated there is no controversy It seems to be conceded that if a mortgagor places his mortgagee in possession of the mortgaged premises as additional security. the mortgagee thereby acquires the right to retain possession as long as the indebtedness so secured remains unpaid-a right additional to, and independent of, his right to foreciose, and which is not extinguished or affected by the fact that an action to foreclose may be barret by the statute of limitations. Spect v. Spect, SS Cal. 440, 26 Pac. 203, 13 L. R. A. 137, 22 Am. St. Rep. 311; Zellerbach V. Allenberg, 99 Cal. 69, 33 Pac. 786; Boyce v. Fisk, 110 Ca!. 113, 42 Pac. 473.

We think it clear, as above stated, that appellant was in possession of the mortgaged premises by Shoemaker's tacit, if not by his express, agreement, and for the purpose of additional security. Indeed, we think the evidence of an express agreement to that effect is free from any substantial conflict. There are many cases in which actions speak louder than words, and here is presented a series of acts of the parties of a highly significant character, every one of which consists with the testimony of Robinson and conflicts with the testimony of Shoemaker. It was a most reasonable and moderate condition of remitting one third of the purchase price of the land and all accrued interest, and extending the time of payment of the other third, that the appellant should have the possession of the land as further security, and it was a condition which, while beneficial to the appellant, so far from imposing any hardship upon Shoemaker, entirely comported with his interest and convenience. The omission of appellant to foreclose, not once only, but twice in succession, until the statute had barred that remedy is strong evidence that its officers, including Robinson, considered that they had other sufficient security, and Shoemaker's acquiescence for a period of 10 years in the possession of the appellant is to my mind conclusive that he knew it to be a rightful possession.

But it is contended that the appellant by causing the land to be assessed to it independent of the mortgage, thereby initiating an adverse claim which would ripen into a prescriptive title at the end of five years, forfeited its right of possession as mortgagee, and restored to Shoemaker the right to recov. er the possession without paying his debt. If this is true it places a mortgagee in possession after the action to foreclose is barred in this position: While he can keep the land forever if he makes no other claim to it than that of mortgagee, he can never sell it be.

cause he can never make an indefeasible title, counts for the disregard by the jury of the and he can never put improvements on it overunelming evidence of appellant s rightful which will make it profitable to the mort- possession at the date of respondent's wrongyagor to redeem. The land is out of the mar- ful entry. The facts of this case are widely ket for all time, and forever-condemned to lie at variance with those of Walsh v. Hill, 41 idle and unimproved. Such a result is op- Cal. 571, upon which the instruction referred posed to public policy and to the policy to seems to be based. The appellant having a of express law. We think it much more rea- large tract of land inclosed conveyed 40 acres sonable to hold that the mortgagee in pos- within the tract and put its rendee in possession has, as he ought to have, some session. This did not put an end to appelmeans of quieting his title to the mortgaged lant's possession of the residue. It only premises, and, since he can no longer fore- entitled the vendee to a right of way across close, that lie should be allowed to set in mo- the residue. There should have been a new tion the time which will bar the right of the trial granted on the evidence. mortgagor to redeem, by plainly manifest- The judgment and order of the superior ing bis intention to claim the land as his court are reversed. own, so that at the end of five years, in default of redemption, he will be invested We concur: MCFARLAND, J.; HENwith a prescriptive title.

SHAW, J.; LORIGAN, J. If this view is correct, the appellant was in the peaceable and rightful possession of SHAW, J. I concur in the judgment and lot 13 on the 20th of October, 1903, when in all of the opinion of the Chief Justice, with respondent made his attempt to take posses- two exceptions. sion. It is extremely doubtful whether the The opinion appears to suggest that there respondent ever had anything more than a was no substantial conflict in tbe evidence in mere scrambling possession of any part of the regard to the fact of there having been an premises. He had gone inside of appellant's agreement between Shoemaker and Robinson, inclosure upon land every foot of which, ex- as agent of the Santa Ynez Land & Improvecept 40 acres belonging to a third party, was ment Company, to the effect that that comin the exclusive possession of the appellant, pany should, as mortgagee, take and retain and was attempting to inclose the 40 acres possession of the mortgaged land until the composing lot 13. He had pitched a tent, mortgage debt was paid, and in regard to marked the corners of the lot, and set some there having been any express consent thereto posts on one side when, on the 10th of No- by Mr. Shoemaker. I think there is a subvenber, he was dispossessed. By these stantial conflict on this subject, but Mr. Shoewrongful acts he had gained at most a right maker does not dispute the fact that the to recover in an action of forcible entry. He company was in the exclusive, actual, and was himself a trespasser, and by virtue of peaceful possession of the land continuously, his 20 days' occupancy bad gained no right with his knowledge, receiving to its own use except that which was secured by a statute the rents and profits thereof, from 1893 to whose principal object is to prevent breaches 1903, nor the fact that during that period he of the peace by punishing the aggressor. made no objection thereto and demanded no could perhaps have recovered in forcible en- | accounting, that, in short, he acquiesced in try, but he cannot recover damages in tres- its possession as mortgagee. This being the pass against the party rightfully entitled to case, the question whether or not there was the possession. Burnham v. Stone, 101 Cal. an express agreement or a formal consent is 161, 172, 35 Pac. 627.

immaterial. The company must be deemed to It is unnecessary to consider the objection | be lawfully in possession as mortgagee by (not raised by respondent, but suggested in implied agreement and by tacit consent. The one of the opinions transmitted from the dis- fact of such implied agreement arises from trict court of appeal) that the errors specified the circumstances stated, and neither the cirin the instructions of the court cannot be cumstances nor the implied agreement arising considered because it is not made to appear therefrom is denied. The case comes within that they were excepted to before the jury the rule laid down in Burns v. Hiatt, 149 retired. I think it does sufficiently appear Cal. 623, 87 Pac. 196, and the company, havthat exceptions were taken in time; but, as- ing lawfully acquired possession, has the suming they were not, the instructions ap- same rights as mortgagee in possession as if pear in the record and serve to explain the its possession was under the sanction of an erroneous verdict of the jury. They imply express agreement. that the complete inclosure of the larger tract

In the statement in the opinion suggesting of which lot 13 was a portion was not evi

that the record sufficiently shows the taking dence of possession of that lot by appellant if of an exception to the instructions, I underthere was other land (referring to the 40-acre

stand the Chief Justice to be stating his perlot belonging to a third party above men- sonal opinion, and not that of the court. tioned) within the inclosure which appellant did not claim. This instruction probably ac- We concur: SLOSS. J : ANGELLOTTI, J

(151 Cal. 785)

Southern Pacific Company and others. From FOGARTY V. SOUTHERN PAC. Co. et al. a judgment for plaintiff, and from an order (L. A. 1,712.)

denying a motion for a new trial, defendants (Supreme Court of California. Aug. 23, 1907.) appeal. Judgment modified, order denying a 1. MASTER AND SERVAXT-INJURY TO SERVAXT new trial reversed, and cause remanded, -PROXIMATE CAUSE-QU'ESTIOX FOR JURY.

In an action against a railway company for injuries to a car repairer while working

The following is the opinion in department, under a car in consequence of the car being

referred to in opinion: struck by another car placed on the track, held, that the questions whether the proximate cause

“ANGELLOTTI, J. This is an action for of the accident was the negligence of the com- damages for personal injuries alleged to have pany in failing to inspect the latter car and discover defects in the brake thereof, or wheth

been suffered through the negligence of the er the accident was due to the negligence of a

defendants. Plaintiff was given a verdict fellow servant, or disobedience by him of a rule against all the defendants for the sum of of the company, or in the examination of the

$50,000, on which judgment was entered. brakes thereof, were for the jury. 2. NEGLIGENCE-QUESTION FOR JURY-PROXI

On motion for a new trial, the trial court reMATE Cause.

quired plaintiff to remit $10,000 thereof, as Where the evidence, in an action for per- a condition precedent to the denial of the mosonal injuries, does not, as a matter of law, show tion. This plaintiff did, and the motion was what the proximate cause of the accident was, the question is for the jury.

denied, and the judgment modified accord3. MASTER AND SERVANT-INJURY TO SERVANT

ingly. Defendants appeal from the judg-RULES OF EMPLOYER-V'IOLATIONS–Evi- ment, the modified judgment, and from the DENCE.

orders denying the motion for a new trial. A car repairer was injured while working

"The defendant Southern Pacific Company, under a car in a yard in consequence of the car being struck by another car. The brake of the which will hereafter be designated herein as latter car was out of repair and was placed on the defendant, is a railroad corporation, owna track by the use of a flying switch. The com

ing and operating a railroad in this and pany had a rule which provided that flying switches should not be made except where it

other states. Plaintiff was a car repairer in would cause great delay to do the work in any its employ. At the time of the accident he other manner. Held that, if the company relied was, as such car repairer, working under a on a violation of the rule, it should make it

(ar that was standing on what is known as appear that the work could have been otherwise done without great delay under the circumstan

the "cripple track' in defendant's yard at San ces, and five or ten minutes might constitute Luis Obispo, about a quarter of a mile theresuch a great delay under certain circumstances.

on from its junction with the main track. 4. SAME.

This track was so designated because it was Where the inspection of cars and the discovo ery of defects therein were confided by a rail

the place where cars were kept while waiting way company to car inspectors, a rule of the or undergoing repairs. It becoming necescompany that flying switches should not be made without testing the brakes of the cars did not

sary to run another car in the yard a portion make employés engaged in switching agents for

of the way down the cripple track from the the inspection of the cars and the discovery of main line, where it was to be unloaded, a defects, and it was not liable to an employé switching crew, including defendants Nelson for the negligence of a fellow employé violating

and Waters, took the car, attached to an enthe rule. 5. SAVE-EVIDENCE-INSTRUCTIOXS.

gine, up the main line, and then switched • Where, in an action against a railway corn- it on to the cripple track by means of what pany for injuries to a car repairer while work- is called a flying switch.' The car passed to ing under a car in a yard. in consequence of the car being struck by another car because of

the cripple track, going at the rate of six to a defect in the brake thereof, the evidence did

eight miles an hour. The cripple track from not, as a matter of law, establish negligence of the main line was sufficiently down grade to the company in failing to inspect the car and require efficient brakes to stop the car before discover the defect, instructions authorizing a recovery if an employé engaged in inoring the l it reached the place where plaintiff was workcar negligently omitted to discover the defect, ing. Defendant Waters was on the moving were erroneous. for the employé was not the car, charged with the management thereof. vice principal of the company for the inspection

and at a point about a thousand feet from the of the car. 6. TRIAL-ERRORS IN INSTRUCTIOxs.

car under which plaintiff was working first An error in an instruction is not cured by

commenced to apply the brake. Ile at once the giving of a correct instruction.

discovered that the brake had no effect on TEd. Vot ::-For cases in point, see Cent. Dig. the car, and, climbing down, endeavored in vol. 10, Trial, $ 718.]

other ways to obstruct its movement, but 7. MASTER AND SERVAXT-INSPECTION OF AP

without effert. The car continued to move PLIANCES-DELEGATION OF DUTY. I railroad company must inspect its cars,

until it collided with the car under which including brakes thereon, and it cannot escape plaintiff was working, causing that car to responsibility by any delegation of such duty. run over plaintiff's legs, injuring them to a

Ed. Yote.-For cases in point, soe Cent. Dig. degree requiring amputation. Examination vol. 31, Master and Servant, $ 175.)

subsequently made of the car so switched to In Bank. Appeal from Superior Court, the cripple track showed that the reason San Luis Obispo ('ounty;. X. P. Unangst, why the brake did not hold the car was that Judge.

it had not been adjusted for some time and Action by Thomas Fogarty against the had become too slack in parts; the result be

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