NAGLE v. MACY, 9 Cal. 426

Field, J., after-stating thé facts, delivered the opinion of the Court—Burnett, J., concurring. It is the settled doctrine of the law, repeatedly affirmed by thiÉ Court, that the prior- possession of the plaintiff, or parties through whom he: claims, is sufficient evidence of title to-support the action of ejectment. (Hutchinson v. Perley, 4 Cal., 33; Winans v. Christy, ib., 70; Plume v.

Seeward, ib., 94.) - This doctrine is not denied by the appellant, but the point of his objection is that the title of which the prior possession is evidence, passed from Leavenworth by his conveyance to Mitchell, and the subsequent possession of Leavenworth from Evans was that of mortgagee ; that, as mortgagee, his conveyance to the plaintiff, executed over two years after leaving the premises, passed no title or right of possession; and that the sale and deed, under the decree of foreclosure, having been made subsequent to Evans’ death, are void.

In this State, a mortgage is not treated as a conveyance, vesting in the mortgagee any estate in the land, either before or after condition broken. It is a mere security for a debt, and default in the payment does not change its character. Neither can possession under the mortgage affect the nature of the mortgagee’s interest, though by the language of the decisions it would seem otherwise. It can neither abridge or enlarge that interest, or convert what was previously a security into a seizin of the freehold. If the mortgage confers no right of possession, entry under it can give none.

It does not change the relation of creditor and debtor, or impair the estate of the mortgagor, but leaves the parties exactly as they stood previous to such possession. In this State, the owner of a mortgage can not become the owner of the mortgaged premises, except by purchase upon sale under judicial decree, consummated by conveyance. (See McMillan v. Richards, decided at the present term.) It follows that Thaddeus Leavenworth, as mortgagee, had only a chattel interest, and that the title to the premises was still in Evans, the mortgagor.

The character of the mortgage, as security, was in no way affected by the fact that judgment for the debt had been recovered. The judgment was not assigned with land, and the transfer of the latter without the former could not be available for any purpose. The debt and the mortgage are inseparable. The latter must follow the former.' As distinct from the debt, the mortgage has no determinate value, and is not a subject of transfer. In Jackson v.

Bronson, (19 John., 825,) the mortgagor sustained ejectment against the grantee of the mortgagee, the Court holding the assignment of the interest of the mortgagee in the land, without an assignment of the debt, a nullity. In Ellison v. Daniels, (11 New Hamp., 274,) the demandant was mortgagor, and the tenant claimed under the mortgagee, through various mesne conveyances; and it was held that nothing passed to the tenant.

By the decisions in New Hampshire, the interest of a mortgagee is treated, so far as may be necessary for his protection, as real estate; but the Court say, in the case cited, that to enable the mortgagee to sell and convey the estate, is not one of the purposes for which his interest, is to be thus treated; that there is no necessity that it should be so treated, as the sale can be equally well effected by the transfer of the debt secured by the mortgage. (Bell v. Morse, 6 N. H., 205.) In Peters v.

Jamestown Bridge Company, (5 Cal., 386,) the mortgagee, Perry, had conveyed the property to one person, and assigned the mortgage to another, and this Court held that the plaintiff who claimed under the mortgagee could not enjoin a sale of the premises upon a decree recovered by the assignee. “ The deed from Perry to plaintiff could not operate,” said Heydenfeldt, J., “ as an assignment of the mortgage.

The latter is a mere security for the debt, and cannot pass without a transfer of the debt; so it would seem that the two transactions are totally different in character; the intent of the one is to convey the title to the land, of the other to transfer a debt with its security.” In considering the rights of Leavenworth, as mortgagee, we have only carried the equitable doctrine respecting mortgages to its legitimate result. The provisions of

section two hundred and sixty of the Practice Act have no application, as the mortgage was executed previous to their adoption. The next question for consideration relates to the validity of the sale under the decree of foreclosure. It is insisted that the sale is void, because made after the death of the mortgagor. The decree is not set forth in the record, but it is presumed to be in the regular form—directing a sale of the premises, and application of the proceeds to the payment of the debt, a deposit in Court of any surplus, and execution for any deficiency.

The Court had jurisdiction of the subject and the parties. The mortgage was a specific lien on the premises, and the decree directs their sale for its satisfaction. It does not appear that any administration has been had on the estate of the deceased, nor that the deceased has any heirs in this State. It is difficult to perceive any valid grounds why the execution of the decree, in the enforcement of the lien, should be stayed under these circumstances.

The suit to foreclose a mortgage is in the nature of a proceeding in rem. (16 Ohio, 141.) The decree binds the specific property, and the case is within the reason of the proviso in the one hundred and forty-first

section of the Act Relating to the Estates of Deceased Persons, (Compiled Laws, 396;) and we do not think it was necessary to revive the decree by a bill, or by a proceeding in the nature of a scire facias. (Mitford’s Ch. Plead., 69.) But, admitting the sale was irregularly made without a revival of the decree, it is not void but only voidable. It is good until regularly set aside, and the title of the purchaser under it cannot be impeached in this collateral action for any irregularity in the proceedings. (Jackson v. Bartlett, 8 Johns., 361; Jackson v.

Robins, 16 Johns., 576.) The motion for a new trial was properly overruled. The allegation of the discovery of a deed of the premises from Thaddeus Leavenworth to William Leavenworth, made in the affidavit of the plaintiff, upon which the motion was based, was fully answered by the counter-affidavit of Thaddeus Leavenworth, that he never executed any such deed. Judgment affirmed.