The mortgage in this case purports to convey the land in dispute in fee simple absolute, with an ordinary defeasance, as is usual in mortgages. Under the terms of this mortgage any after-acquired title (if indeed Viera did not at the time have title) would pass to the mortgagee or the person purchasing at the mortgage sale. (See Clark v. Baker, 14 Cal. 618.)
This mortgage, by operation of law, is a mortgage with full warranty of title. And the warranty in the mortgage is, according to the decision in the above quoted case, to have the same effect as if in a deed. But, says the appellant, this implied warantee is to have full and complete effect as long as the mortgage is in force; but when the mortgage is merged in a judgment and sale, then the warranty ceases to have any operation. In effect, when a mortgagor warrants the title to land he is mortgaging, he only warrants the title for his own benefit, not that of the mortgagee. As long as the title is in the mortgagor the warranty is good. When the mortgagee enforces his lien and vests the title in himself by purchase at Sheriff's sale, the covenant is gone. This doctrine is certainly a novel one. It is the case of a man making a deed of warranty directly to himself. " I, A. B., bargain, sell and convey Black Acre to myself; covenant with myself to warrant and defend the title in myself forever; but upon express condition that this covenant shall not run with the land to any holder by descent or purchase from myself." The value of such a deed we are unable to appreciate.
Whatever covenants of warranty are contained in a mortgage pass under a decree of foreclosure to the purchaser at Sheriff's sale, whether that purchaser be the mortgagee or another. (Andrus v. Walcot, 16 Barb. 21; McCrady v. Brisbain, 13 Ind. 193; Tufts v. Andrus, 1 N. & McC. 104; 8 Pick. 547.)
JUDGES: Wallace, C. J. Mr. Justice Rhodes dissented.
OPINION
WALLACE, Judge
The action is ejectment, and the premises sued for are a portion of the Suscol Ranch. The asserted legal title of the plaintiff originates in a Sheriff's deed, delivered in 1865 to a purchaser at a judicial sale held upon a decree of foreclosure, regularly entered in an action instituted against the defendant here. The decree was founded upon a mortgage deed executed by the defendant to Frisbie in 1861, to secure a balance of unpaid purchase-money--the defendant, at the time, receiving from the mortgagee a conveyance whereby he obtained the asserted title of General Vallejo to the mortgaged premises. In February, 1862, this title of Vallejo was finally rejected in the Supreme Court of the United States, and in the following month of December the decree of foreclosure was entered against the defendant, directing that the mortgaged premises be sold to satisfy the principal debt owing by the defendant, with the interest accrued thereon, and that the purchaser receive a Sheriff's deed, and be let into possession, etc. In 1863 Congress passed the Act for the relief of the purchasers from Vallejo, and in 1867 the defendant, under the provisions of that Act, as being a purchaser from Vallejo, and in possession when the title of the latter was rejected, obtained for himself the patent from the United States, purporting to convey to him the premises in controversy; and he now relies upon this patent as vesting in him the legal title, in defense of the present action. The mortgage-deed delivered by the defendant, and through the foreclosure of which the plaintiff's title comes, purports, upon its face, to convey the premises by way of mortgage in fee; its language is: " Hath granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, release, convey and confirm unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land, situate," etc.
The action, as we have remarked already, is ejectment, and the legal title must, of course, prevail. It is conceded that the legal title is that title which is derived through the patent of the United States of the year 1867, running to the defendant Viera on its face; and the general question for determination is, whether, in point of law, that title is, under the circumstances, to be considered as vested in the plaintiff or in the defendant.
The thirty-third section of the statute of this State concerning conveyances is as follows: " If any person shall convey any real estate by conveyance purporting to convey the same in fee simple absolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterward acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance." The thirty-sixth section of the same Act provides that the term " conveyance," as used in the Act, shall be construed to embrace any instrument in writing by which any real estate or interest in real estate is created, aliened, mortgaged or assigned, with certain exceptions not material now to notice.
In short, a mortgage in fee is, for the purposes of the statute, a conveyance in fee. It was so held in Clark v. Baker, (14 Cal. 612,) when the question was first presented for consideration, and the ruling in that case has been followed here in the subsequent cases in which the point was involved. (Clark v. Boyreau, 14 Id. 634; San Francisco v. Lawton, 18 Id. 465; Kirkaldie v. Larrabee, 31 Id. 455.) The mortgage-deed to Frisbie, purporting, as it does, to convey the fee, is to be read as if it were written upon its face that the mortgagor, Viera, thereby mortgaged not only all the estate which he then held in the mortgaged premises, but all the estate therein which he might at any time thereafter acquire. (Clark v. Baker, supra, 630.) This interpretation of the statute is made necessary, in order to give force to its provisions, that " such conveyance shall be valid as if such legal estate had been in the grantor at the time of the conveyance," and to its further provision that the legal estate subsequently acquired by the grantor " shall immediately pass to the grantee." The consequence attributed by the statute to a conveyance in fee by way of mortgage is, as against the grantor and his privies, similar to that following upon a fine levied at common law, when resorted to as a mode of assurance, which operated to transfer to the conusee the entire estate, present or future, vested or contingent.
Upon this view it follows that the decree of foreclosure entered upon the mortgage executed by Viera, and directing a sale of the mortgaged premises, was, in effect, a decree, that the estate of the mortgagor in those premises, vested in him at the time of the execution of the mortgage, or which should at any time thereafter come to him, be sold to satisfy the mortgage debt, and that the Sheriff's deed, delivered to the purchaser at the sale, operated a transfer of the estate so directed to be sold. The mortgage-deed, though in some sense merged in the decree, remains a muniment of the title which passed to the purchaser at the mortgage sale, and to be looked to, not only for the purpose of ascertaining the point of time at which the mortgage lien attached, but also (in the absence of express directions in the decree limiting the estate to be sold) the estate purporting thereby to have been conveyed by way of mortgage, as being in fee or otherwise.
The rule that a Sheriff's deed delivered upon execution sale imports no warranty of title, but transfers to the purchaser only such estate as was held at the time by the defendant in execution, has no practical application to a Sheriff's deed delivered upon foreclosure of a mortgage in fee; for, as we have seen already, the defendant in the latter case must continue to be estopped, by the terms of the mortgage-deed itself, to deny that the estate was other or less than an estate in fee in the premises. These terms, importing a conveyance of the fee, are equivalent to a covenant of general warranty of title running with the land. We are, therefore, of opinion that the plaintiff is vested with the legal title to the premises in controversy, and that the judgment below should be affirmed.
This view renders it unnecessary to consider the questions made upon the effect of the lease of the premises afterwards accepted by the defendant from Atherton, the purchaser at the foreclosure sale.
Judgment and order denying a new trial affirmed.