The record-union., 1891-04-01


purpose OF obtaining equitable relief
hereln," alleged that in October, 1915,
Jonas Spect, who was then the owner and
IN possession of the demanded premises,
conveyed the same to one Montgomery;
that IN October, 1876, said Jonas Spect
borrowed from the defendant the sum of
500, and executed to her his promissory
note therefor; that on the second day of
january. 1877, he procured said Mont
gomery to convey the demanded prem-
ises to her, and that at the same time,
and as part of the same transaction, an
agreement was entered into between her
self and said Jonas Spect, declaring that
said conveyance was made as security for
the payment of said promissory note;
that by virtue of said conveyance from
Montgomery, and said agreement, and
by the consent of said Jonas Spect, de-
tendant took possession of the
demanded premises, and has ever
actual possession of the same.
claiming them as her own; that no part
OF said 5000 has ever been paid, prin-
cipal or interest, but the whole thereof is
now due and unpaid, amounting to So
81, and prayed Judgment that plaintiff7s s
complaint be dismissed. The action was
tried by the court, and judgment rendered
for the plaintiti. The court made findings
of the facts alleged in the complaint, and
incorporated therein the following state
ment with reference to the equitable de-
tense set up in the answer: 1.-The court
declinesto find on the fact whether or not
defendant has mortgage lien on the
premises in controversy, for the reason
that the court is of the opinion that it is
not necessary for the disposition of the
issues involved in this case to find upon
that matter, this being an action of eject
ment, and the only question involved be-
ing the right to tho possession OF the
premises described in plaintiffs COM
plaint." The defendant has appealed di-
rectly from the judgment, and presents
as ground for its reversal that the court
failed to find upon the issues presented
by her equitable defense.
lnaSmuch as the court gives as its rea-
son for not making findings upon these
issues that such findings were inmate
rial, we must assume that evidence was
introduced at the trial sufficient to sup
port the allegations, and, therefore, the
rule announced in Himmellnan VS..
Henry (S4 Cal. I04) has no application. If
the facts alleged by the defendant consti-
tute defense to the cause of action set
forth in the complaint, they presented
material issues upon which the court
should have made findings. and failure
to do so was error which will require a
reversal of the judgment,
The court does not find by what
means the plaintiff became the owner of
the demanded premises, but as it is al
legged in the equitable defense above
named that Jonas Spect was the owner at
the time he made the conveyance to
Montgomery, we must assume that the
plaintiffs IS title is derived under him, and
is, therefore, subject to whatever incum-
brance was created by the foregoing acts
in favor of the defendant, and that the
plaintiff can assert no greater rights to
the premises than could Jonas Spect him
self, were ne the plaintiff herein. 1t may
also be assumed although it does not ap-
pear in the record, that such point was
presented to the court below, that the de-
fendant's right of action upon the debt
for which this mortgage was given to her
was barred by the statute of limitations.
The question to be determined is, "Can
mortgagor, who has placed his mort
gagee in possession of the mortgaged
premises, maintain ejectment against
him while the debt for which the mort
gage was given remains unsatisfied, even
though an action by the mortgagee for
the recovery of the debt is barred by the
statute of limitations?'
Section 1927 of the Civil Code declares
that "a mortgage does not entitle the
MORTGAGE to the possession of the prop
erty unless authorized by the express
terms of the mortgage; but after the ex-
ecution of the mortgage the mortgagor
may W SIlCll CIItiIlRt = vi pCSScSSlOh
without new consideration" The
right OF the mortgage to take the posses
sion of the mortgaged premises does not
depend upon the statute. The mort
gagor could at all times, even by parol
agreement, give to his mortgage this adj
ditional security. (Fogarty VS.. Sawyer,
II Cal. $50; Edwards VS.. Wray, IL Bliss.
25l.) In taking such possession the
mortgage does not thereby acquire any
estate in the land, or obtain for his mort
gage any higher character or any differ
ent or greater protection than it would
otherwise have possessed. In any action
to enforce the mortgage, or to collect the
debt for which it was given as security,
the mortgage has no additional rights
by reason of the fact that he is in possess
sion of the mortgaged premises with the
consent of the mortgagor. Such pos
session does, however, give him
rights in addition to those conferred
by the mortgage. It is an additional
security for the debt, which he is entitled
to retain in accordance with the terms
under which it was received. This right
to retain the possession of the land is not
coincident with right to forecloSe his
mortgage, or dependent upon such right,
but depends solely upon the existence of
the debt. The possession of the land is a
special security for the debt, distinct and
separate from the mortgage, which has
been conferred by an act of the debtor,
and the right to retain the same is indie
pendent of and distinct from any right
springing from the mortgage. A mort
gage is defined by Section 2920 of the Civil
Code to be "a contract by which specific
property is hypothecated for the perform
ance of an act without the necessity of a
change of possession" The use of the
term "hypothecate' signifies that pos
session Is not an incident of the mortgage
and that the fact of possession is entirely
distinct from the contract of hypotheca-
ton. When, therefore, in addition to the
contract of hypothecation, the debtor
gives to his creditor the possession OF the
mortgaged premises, he thereby in addi-
ton to the mortgage which he has exc
cuted, pledges to him the land also as Sc
curity for the debt, and confers upon him
such rights as are incident to pledge.
The common law recognized this species
of landed security. 1t was there called
Vadiuna U6VUuo, as distinguished from the
V0diunl n1O1tlLtm. This is defined by
Chancellor Kent to be: "When the cred
itor takes the estate to hold and enjoy it
without any limited time of redemption
and until he repays himselfout of the rents
and profits. In that case the land sur
wives the debt, and when the debt is dis
charged, the land, by right of reverter, re-
turns to the original owner" a Kent,
Com. 137; 2 81. Com. 157; Co. Lift. 205 al
The holding of the land in pledge is like
the holding of any other pledge. Until
the debt is repaid the owner of the pledge
cannot recover it from the creditor. The
holder of personal property given as Sc
curity for debt is entitled to retain the
same from the owner until the debt is
satisfied, even though the statute of limit
ations has barred all right of action to re-
cover the debt. Zones VS.. Merchants
Bank, 4 Robt. 221.) Under the same prin-
ciple the mortgage in possession is en-
titled to retain such possession until the
debt is paid. 1.-THE mortgagee's right,
being in possession, to defend himself
hllt rSrht l.ntni1n tlnla racnSSo-..ir,