The record-union., 1891-03-22

spondeEts, nothing further was required
OF respondents in the way of giving
notice, except to furnish within reason
able time thereafter, the preliminary
proofs as to the particulars of the loss,
and the complaint shows that this was
done, even if not furnished before Oc-
tober 25, 1885.
Judgment affirmed. DEHAvEN, J.
We concur:
MCFARLAND, j.,
SHARPsTEIN, j.
IFlled at Sacramento, March Is, 1871
=, Appeal from the Superior Court of
Iulare County-W. w. Cross, Judge.
For appellant-Justin Jacobs.
For pondents-Lambertson & Tav-
lor.
IN BANK.
JOHN M. MANGAN and NO. i5,'o'.
MARY A. MANGAN,
Respondents.
This is an action of ejectment, the COM
plaint being in the usual form. The an
swer makes general denial and then
alleges certain facts in the nature of a
special defense. Judgment went for the
defendants in the lower court, and the
case Is before us for consideration upon
an appeal from the Judgment and from
the order denying PLAINTIFFS s motion for
new trial
The following are substantially the
nnolngs OF the court, and they are sup
ported both by the allegations of de-
fendants, special defense and by the evil
dence: That upon the 10Th day of October.
1879, the Southern Pacific Railroad Com
Pany was the owner of certain tract of
land situated in Tulare and Fresno Coun-
ties, and at said time Mary A. Manean.
who WAS the wife of J. NJ. Mangan. en-
tered INTO written contract with said
company whereby said company con-
tracted to sell TO them said real property for
an agreed price; and said Mary a. Man
gan, at that time, from her separate prop
erty, paid portion of said purchase
price, and agreed to pay the balance on or
before the 10th day of October, 1884, with
interest at 10 per cent. per annum: and.
upon the payment of said purchase price
and interest, said company agreed to exc
cute and deliver to her deed in fee of
said premises; that upon the execution
OF said agreement the defendants
entered into the possession of said
property, and ever since said time
nave been IN the open, notorious
and exclusive possession and occupancy
thereon, having valuable improvements
thereof, and claiming to own the same;
and the plaintiff, prior to his purchase.
never made any inquiry from them, or
either of them, as to their rights or claims
in and to the premises. That about the
18th day of September, 1888, defendant
Mary A. Mangan assigned her interest in
and to the foregoing contract of sale to
one Brownstone to secure promissory
note given by defendant j. NJ. Mangan to
said Brownstone; and said assignment
was made with the understanding that
said contract should be reassigned to her
-l,Axn "a ,,lt.N .-.Az
That said note was subsequently sur
rendered to j. NJ. Mangan, and he gave a
new note to Brownstone for larger
amount Including the amount of the first
note) without the consent or knowledge
of Mary A. Mangan, and no part of said
note has been paid. That upon the I'D
day of November, 1888, Brownstone as
said contract to b. Schwartz, and upon
February 25, 1883, Brownstone and
Schwartz assigned said contract to one
Erlanger, who had actual knowledge of
the claims and rights of defendants in and
to said land. That upon the 7th day of
March, 1SSS, Erlanger assigned said con-
tract to plaintiff, who, upon the l4th day
railroad company for said land, surren-
dered said contract and received deed
therefor.
The court further found that the as
signment of the contract of sale to Brown
stone was mortgage of defendants in
terest in the land, and that the possession
of defendants was sufficient to put plaint-
iff on inquiry as to their rights, and hav-
ing failed TO make such inquiry, he is in
no better position than if he had done so
and had been fully informed as to the
defendants claims and equities.
The assignment of the contract by Mary
a. Mangan was as follows: II, Mary A.
Mangan, the within-named purchaser,
for and consideration of the sum of $500
to me in hand paid, do hereby sell, as
sign and transfer all my right, title, in
terest and claim in and to the within de-
scribed tract, or parcel of land. and the
within contract No. 759 unto d. Brown
stone, his heirs and assigns, forever, sub
ject to the stipulations and conditions
therein contained, which are to be per-
formed by said ID. Brownstone, the as
signee. MARY A. MANeAN.
September is, 1885,"
Appellant relies upon two main propo-
Sitions in this case, either of which, il
maintained, he claims would entitle him
to recover. First-That he is the owner
and holder of the legal title TO the prem
ises, and in an action of ejectment the
legal title must control. Second-If the
assignment of the contract were TO bc
held to be mortgage, the debt for which
1t was given being barred, defendants
are entitled 10 no consideration without
offering to redeem.
The first proposition, that sin an action
OF eiectment the legal title must controP'
is not the law of this State. The case of
Willis VS.. Wozencraft (22 Cal. 6l5l de-
cides: "A mere equitable title to land. if
it is of such a character as entities the
holder to possession in equity, is sufii-
cient defense under our system of prac-
tice 10 an action for the possession,
brought even by the holder of the legal
title. Central Pacific Railroad Com
pany Va. Nrdd. 70 Cal. SIS: Whittier rs.