CHARLES M. HITCHCOCK, Respondent, v. JEREMIAH CLARKE, Appellant, 2 Cal. Unrep. 37

By the COURT. The complaint in the action of Kane v. Castro et al. alleged “that the defendants Alexander Finance and Charles M.

Hitchcock have, or claim to have, some interest in or claim upon said premises hereinbefore described, or some part thereof, as purchasers, mortgagees, judgment creditors or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff’s mortgages.” The decree in that action would preclude the present plaintiff from asserting any right acquired from the mortgagor after the execution of the mortgage, but it did not devest him of any rights held paramount to the title of the mortgagor: Freeman on Judgments, sec. 303; Frost v. Koon, SO N. Y. 444; Lewis v. Smith, 11 Barb. (N.

Y.) 156; Bank of Orleans v. Flagg, 3 Barb. Ch. (N. Y.) 318. The land of the plaintiff was not subject to the lien of the second mortgage mentioned in the complaint in Kane v. Castro et al., and the plaintiff’s right and estate were in no way affected by the decree in that action, in so far as it provided for the foreclosure of the second mortgage. The plaintiff and defendant were tenants in common in possession of the land subject to the first of the two mortgages.

They had, therefore, such a community of interest in a common title as precluded the defendant from acquiring an adverse title, without affording the plaintiff a reasonable opportunity, on payment of his proportionate share of the expense of its acquisition, to enjoy the benefit of such title: Rothwell v. Dewees, 2 Black (U. S.), 613, 17 L. Ed. 309. As this case is presented by the transcript, it neither appears, when the present action was brought, nor with any precision, at what time the plaintiff offered to contribute his share of the first mortgage debt and of costs and expenses of foreclosure.

It was his duty, within a reasonable time after he became apprised that defendant intended to claim to be the sole owner by virtue of the foreclosure and sheriff’s deed, to make his election to claim the benefits and contribute to the expense of the foreclosure title. As the case presents itself, we cannot, in opposition to the decision of the court below, say that he was guilty of such laches as should deprive him of his right to maintain this action. Judgment and order affirmed. Wallace, 0. J., did not express an opinion.