The record-union., 1898-06-18

189. The principles involved in that
case are very similar to those involved
in the case at bar. and In it's decision
the court quotes Mr.. Jones on Mort
cages" as follows:
Even where the parties have under
taken to discharge the mortgage upon
the uniting Of the estates of the mort
gagor and the mortgage in the lat
ter, it will still be upheld as a source
Of title whenever it is for his interest
by reason Of some intervening title or
other cause that it should not be re-
garded as merged 1t is presumed, as
matter of law, that the party must
have intended to keep on foot his mort
gage title, when it was essential to his
security against an intervening title, or
for other purposes OF security; and this
presumption applies, although the
parties through ignorance of such an
intervening title, or through mad
vertence have actually dischargeds the
mortgage and cancelled the notes, and
really intended to extinguish them.
It may therefore be deduce0
from the authorities, as general rule,
that when the mortgagee acquires the
equity of redemption, in whatever way
and whatever he does with his mort
gage, he will be regarded as holding
the legal and equitable title separately
If his interest requires this severance.
The law presumes the intention to be
in accordance with his real interest,
whatever he may at the time have
seemed to intend
Moreover, Wittenbrock was, and his
executrix, as his representative, is. a
mortgage in possession, and neither
the mortgagOr nor any one claiming
under him can eject a mOrtgagee in
possession until the mortgage debt has
been paid. To permit the foreclosure
of plaintiffs mortgage would be tanta-
mount to ejecting the defendant Wit
tenbrock from the possession of the
land subject to his possession. (Spect
VS.. Spect, SO Cal. 437, and cases cited. J
AS have before stated, the title ac-
quired by Henry Wittenbrock under
his deed from Frank Troi and wife,
dated August 20, 1894, under the re-
cordation laws of this State, is para
mount to the lien of plaintiffs mort
gage, Wittenbrock not having actual
notice of plaintiffs mortgage or Of the
clause therein mortgaging real estate.
1t follows, therefore, that plaintiff is
entitled, in any event, to personal
judgment against the defendant Troi
for the amount Of the promissory
notes set out in the complaint, with in
terest according to the terms Of said
notes. And, in view of the offer made
in the answer and cross complaint Of
the defendant Eliza Wittenbrock, as
eXecutrix of the last will and testa-
ment Of Henry Wittenbrock, deceased,
plaintiff is entitled to a foreclosure Of
his said mortgage, provided he pays
to said defendant Wittenbrock, within
thirty days from the entry of judgment
herein, the amount of principal and in
terest due on Trois note and mortgage
to Wittenbrock on August 90 1894, the
date of the deed to Wittenbrock; said
principal sum being $1,000, and inter-
est 81 500, with interest thereon at 9l2
per cent per annum from that date un-
til paid, less the value Of the rents
and profits of said land hereby fixed
at $500 per annum, for the time which
has elapsed since August 20, 1894, viz,
four years. If plaintiff fails to make
said payment within said thirty days.
then that defendant Wittenbrock, as
such executrix, as aforesaid, is the
owner in fee of said lands in question.
Findings will be prepared in accord
ance herewith.
JOSEPH w. HUGHES,
Judge Of the Superior Court