Los Angeles herald., 1892-12-31
AN INTRICATE PROPOSITION
Judge Clark Renders an Opinion In an
Involved FOrecl0snre Case.

Judge Clark Renders an Opinion In an
Involved Foreclosure Case.
Judge Clark yesterday handed down
the following opinion in the case of the
First National bank of Pomona vs. E. D.
Rice ct al:
This is suit to foreclose mortgage.
On January 10, 1887, the premises we're
conveyed by NJ. l.. Clarke to the defen-
dant Rice. In payment the said defeD-
dant Rice executed three promissorv
notes in sums OF three. five and ten
thousand dollars, respectively, and at
the same time executed mortgage to
secure the payment Of tho same. Tho
two first notes have been paid.
On July 2, 1887, the notes and mort
gage were assigned by the said M. L.
Clarke to one Stoddard Jess, and he on
the 10th day OF July, 1887, assigned the
same to plaintiff. After the conveyance
February 10, 1887, the latter conveyed
to the San Bernardino and Los Angeles
Railway company, the predecessor in
interest of the defendant, the Southern
California Railway company, q portion
of said land for railway and depot pur-
poses. The deed is one of grant, recites
9 consideration of 81 and other good and
valuable consideration, and after de-
ecribing the land conveyed proceeds:
"And it ;s made condition of this
grant as to both the strips of land here
in described that the said San Bernar-
dino and Los Angeles Railway company
is to construct, maintain and operate its
railroad over and upon the strips of
land hereinbefore described, and that
said railway company is to build and
maintain their principal depot for the
Pomona section of the country upon the
land described between stations 1926
and 1885, on line K, per railroad sur
vey; said railroad to be constructed
within 80 days and said depot building
within six months, else this conveyance
and all rights hereunder to be void and
of no effect, and said railroad company
to be amenable and held for reasonable
damages" etc.
1t was not alleged or proven that the
condition of the deed was not complied
with. There was evidence that the 81
consideration had not in fact been paid.
After the execution of this deed and by
various conveyances and successive con-
veyances, the balance of the premises
mortgaged came to the defendant, j. L.
Rowland. The question presented is
one Of marshaling the assets; each OF
said defendants, the Southern California
Railway company and the said Rowland,
claiming that the land conveyed to the
other should be first sold to satisfy the
mortgage debt.
The general rule is that where land is
subject to mortgage or other incum-
brance and portion thereof is sold by
the owner. the mortgage, being then q
creditor with two funds, must proceed
primarily against the fund or property
remaining in the grantor, his equity be-
ing regarded as inferior to that of his
grantee. And it follows that, as between
purchasers of different parcels, each
purchaser in turn succeeds to the equi-
ties of the grantor, and as between them
the land is therefore chargeable in the
inverse order Of it's alienation.
Ii, however, a conveyance be
made without valuable consideration
the equities of the grantee are not re-
garded ae superior to those of the
ferior to those of other grantees whose
grants rest upon valuable considera-
ton.
This rule is recognized by section 28o0,
Civil Code, which reads: "Where one
has Lien upon several things and
other persons have subordinate liens up
on or interests in some but not all of
the same things, the person having the
prior lien, if he can do go without risk
Of loss to himself or of injustice to
other persons, must resort to the prop
erty in the following order on demand of
any party interested.
81. To the things which have not
been transferred since the prior lien wa q
created. 2. To the things which have
heen go transferred without valuable
consideration. 8. To things which have
been go transferred for . valuable con-
sideration in the inverse Of the trans
fer" Applying this rule it would re-