The decree is proper, and conforms to the direction of this Court on the previous appeal. In the decision on that appeal this Court, after stating that the defendants set up in their answer a title by patent and tax deed to a portion of the mortgaged premises, says: " Of the value of the titles conferred by those instruments it is unnecessary to express any opinion. Their validity is not the proper subject of determination in the present suit. It is only necessary to look into them so far as to see that they are asserted in good faith, and are not merely pretenses for delay, and this being seen, the rights of the defendants, Howard and Perley, should have been reserved in the decree. If there were no other reason than the assertion of these adverse titles for making them parties, the suit should have been dismissed as to them. But there were other reasons." And the Court, after stating how the appellants deraigned title as there shownby the record before it from Mowry, adds: " The appellants thus succeeded to whatever estate the mortgagor possessed, and as such successors were proper and necessary parties to the forclosure." And in another part the Court held that: " Whatever estate, if any, they (the appellants) have acquired from him is as much subject to the mortgage as it was previous to his conveyance to Sawyer. So far as they claim under him (Mowry) they are estopped equally with him from denying the efficacy of the mortgage." And the Court, in conclusion, held that the appellants were entitled to the insertion of a clause in the decree saving their rights under the patent and tax deed, and for the omission in that particular the former decree was reversed.
It is clearly manifest by the above extracts that the decree now under consideration is not contrary to, but conforms to all the principles laid down by the Court in its former opinion. It subjects to sale all the estate which the appellants derived from the mortgagor. The title of the appellants under the patent and tax deed is not determined, or in any way passed upon, but all the rights of the appellants under said patent and tax deed are reservedand saved to them, and each of them.
This Court held that if the former decree had contained a clause saving to the appellants their rights under the patent and tax deed, it would have been sufficient; that for the " omission" in that particular the decree must be reversed. Now, if that decree would have been good by the insertion of the clause referred to, how can the counsel contend that the full and ample saving and protecting clause in this decree does not protect the rights of the appellants under the patent and tax deed?
JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
FIELD, Judge
Upon the foreclosure of the mortgage in this case the plaintiffs were entitled to a decree for the sale of all the rights and interests of the mortgagor. But inasmuch as some of the defendants, so far as the property situated on the corner of Battery and Vallejo streets is concerned, claim adversely to the mortgagor under paramount title from the Mexican Government, confirmed by a patent of the United States, the decree should have reserved their rights. Such was the purport of the previous decision in this case. The decree entered, however, goes beyond the decision, and practically nullifies and defeats it. It directs upon the sale, redemption not being made, a conveyance of the fee and a delivery of possession of the premises thus held adversely to the purchaser, and confers upon him until redemption made the right to recover the rents, issues, and profits of the land. The decree is in this respect palpably erroneous, and must be reversed. As the parties claiming adversely by paramount title are in possession, the decree must be limited to a sale of the rights and interests which the mortgagor possessed at the date of his mortgage, and the purchaser must, after receiving a conveyance, assert his right to the possession by the ordinary action of ejectment.
Judgment reversed and cause remanded for further proceedings.
On a petition for rehearing the judgment of the Court was modified so as to direct with a reversal of the judgment of the Court below, the entry of a judgment by that Court pursuant to the views expressed in the opinion.