The record-union., 1891-03-22
Siege, 81 Cal. 2ss; Hicks vs.. Lowell, 81

| for by appellant, there is line of author
| Ities which supports such contention.
| SHughes vs.. Davis, 30 Cal. 40; Bruck VS..
| Tucker, AZ Cal 352: Pico vs. Gallardo, 81
Cal. 2O6.) This proposition of law as laid
down in the cases just cited, is based
upon another principle of law established
| for the first time in this State in Hughes
VS.. Davis, supra, and which has since
been discarded by Section 1925 of the
| civil Code. This principle as announced
by the court was that an absolute deed,
which is shown by paroI evidence to
have been intended as q mortgage, con-
veys the legal title to the property" And
our attention has not been directed to any
authority since this principle ceased to be
the law of this State, which has held to
the doctrine laid down in those cases; but,
upon the contrary, the later decisions oi
this court hold that under the general is
sue the defendant may be allowed to
show that the deed by which plaintiff
claims title IS mortgage, and therefore
gives him no title
In the case of Healy vs. O'Brien (66
Cal. 5l9l, the language of the opinion is
But when the court found that the deed
| was given only as security for money
loaned, it found in effect that it was but q
mortgage, and did not pass the legal title
TO plaintiff. If, therefore, defendants had
rested only on their denial of plaintiff S
alleged ownership of the property, judg-
ment must have passed for the defend
ants"
In the case of Smith VS.. Smith $50 Cal.
800, the court says: "The plaintiff con-
tends that his motion to proceed first with
| the trial OF the affirmative defense set up
by the answer should have been granted,
for the reason that it was an equitable
defense, and that the whole judgment
should have been reversed upon this
ground" The affirmative defense was
that the deed of 1876 was n mortgage,
and that the debt secured thereby had
| been fully paid" But the allegation that
| the deed a0dS q mortgage aOdS nterely
another '0dy Of saying that the ptaintiG
rad no tftie a0hich a0dS fatty covered 6y the
densGt Of plaintiffs ownership. And so
far as the plaintiffs right of possession
was concerned, 1t was immaterial whether
the debt had bee1, paid or not And while
| 1t may be possible that if the de-
fendant had title he would have been
entitled to some affirmative relief in the
nature OF the removal of cloud, yet he
did not ask for such relief in terms, and
| no affirmative relief of any kind was
awarded to him by the Judgment. (See
Roberts VS.. Columbet, 63 Cal. 25.)
In the case at bar the defendants have
not relied upon the general issue simply,
but by special defense-not seeking any
affirmative relief-have attacked the title
of plaintiff and set out q history of their.
o"h .itie anu TlSnt OF possession TINS
special defense counsel for the plaintiff
did not see fit to attack in the lower court,
and indeed 1t cannot be discerned upon
what grounds an attack could have been
successfully made.
The plaintiff came into court in this ac-
ton with full notice of all the rights and
equities existing between the railroad
company and thedefendants and between
Brownstone and his assignees and the
defendants, for the defendants were in
the open, notorious and exclusive DOS
session of this land at all these times, and
plalntiff made no inquiry TO ascertain the
rights or claims of defendants, and he is
| IN no better position and no more entitled
TO be regarded as a purchaser in good
| faith, than if he had so inquired and as
certained the real facts of the case. (Pell
VS.. McElroy, 36 Cal. 26S Bank of Mendo-
cino VS.. Baker, 81 Cal. ia; Scheeren VS..
Cuddy, IS Cal. 273) Neither could the
plaintiff be recognized as bona fde pur-
chaser from his assignor Erlanger, upon
the additional ground that in the sale of
equitable interests the principle of bona
Hde purchasers has no standing. (Taylor
VS.. Weston. II Cal. 534.)
The transfer of Mary A. Mangan's in
terest in the land (by the assignment of
the contract to Brownstone) being a mort
gage, Brownstone took no title, and his
assignment to Erlanger, who assigned to
plaintiff, gave the plaintiff no title, for as
we have already seen, he is deemed to
have had notice of the character of the
original assignment. The plaintiff does
not even occupy the position of Brown
stone, for he has an assignment of the
security without the transfer of the in
debfedness. The debt and security are in
separable; the mortgage alone is not a
subject of transfer. (Sec. 1886 Civil Codes
Peters VS.. Jamestown Bridge Co.. 5 Cal
33i; Nagle VS.. Macy, 9 Cal. 426.) Conced-
ing, that under the assignment of Mary
a. Mangan to Brownstone she authorized
him to procure from the railroad COM
pany the legal title, vet it is a matter of
very serious doubt whether under the
assignment, Brownstone had the right to
delegate that power to another, but that
is a question unnecessary to decide II
we regard the plaintiff as the assignee of
the railroad company, he then purchased
the legal title subject to the equitable
title OF the defendants, under the contract,
and his legal rights in maintaining this
action are Identical with those of his
assignor; and, under the facts as disclosed
by the record in this case, the railroad
company could not prevail in this action.
The record discloses that the defendants
went into possession under the contract;
paid portion of the purchase price; paid
the taxes and annual installments of in
terest for years. The plaintiff before
suit made no demand for possession; there
is no proof in the case of any special
facts tending to show either an active or
constructive custer of the plaintiff; nor is
there any evidence tending to show de-
mand and refusal to pay the purchase
price or any installment of interest after
1t became due; or that the railroad COM
pany had not given the defendants addi-
tional time in which TO make the final
payment, or that the defendants had
abandoned the purchase or refused TO
70 th.af
contract There is nothing TO indicate
that the defendants We're in default i'll the
performance of the contract, and being
rightfully in possession under their equi-
table title, they could not be disturbed,
even by the holder of the legal title.
Let the judgment be affirmed.
GARoUTTE, J.
We concur:
HARRISON, J.,
MCFARLAND, j.,
PATTERSON, j.,
SHARPSTEIN, j.,
DEHAvEN, j.
[F'iled at San Francisco February 81,
1891.
Appeal from Superior Court of Santa
Clara County.
For respondent. Moore and Burchard.
For appellant, J. G.. Black.
DEPARTMEN ONE.
MARTHA THOMPSON
Er AL, Plaintiffs
and Respondents,
VS.. No. 1886.
/. N. THOMPSON EFT
AL, Defendant and
Appellant.
The appeal in this action is without
merit. The evidence introduced at the
trial justified the finding of the court that
the respondent was the owner and enti-
tied to the possession OF tho promises de-
scribed in the complaint, and that they
the defendants Althouph a norton of