JAMES M. HENDERSON v. NATHANIEL McTUCKER, 45 Cal. 647

By the Court: The defendant ¡Nathaniel McTucker held no greater interest in the premises at the time of the foreclosure of the mortgage than the mortgager had at its execution, and that interest was such as accrued by virtue of the certificates of purchase. The patents for the lands were issued to other parties—those under whom Daniels entered upon the premises.

The question1 as to whether the plaintiff is entitled to the benefit of those patents as against the patentees and the holders of the second mortgage, is one which might be determined by a Court of equity, and, indeed, is peculiarly of equitable cognizance. It could be determined only in an action in which all the parties in interest—both the holders of the patent and the second mortgagees—are before the Court, and could not be litigated in a motion for a writ of assistance. The order of the Court directing the writ of assistance to issue as against Daniels, was erroneous.

Order reversed as to Barton Daniels, and cause remanded, with directions to enter an order that he be restored to the possession of the premises.