Kidd v. Teeple , 22 Cal. 255 ( 1863 )

Norton, J. delivered the opinion of the Court—Cope, C. J. and Crocker, J. concurring.

By operation of Sec. 260 of the Civil Practice Act, and it may be said also of some other sections of that act, and certain sections of the act concerning conveyances (Secs. 1, 24, 36-40) and of several decisions of this Court (McMillan v. Richards, 9 Cal. 365; Johnson v. Sherman, 15 Id. 287; Fogarty v. Sawyer, 17 Id. 589), a mortgage of real estate does not in this State confer the right to the possession of the mortgaged property, except as the result of a foreclosure and sale. The defendants’ mortgage, has not been foreclosed. The mortgage has no special provision authorizing possession to be taken, whatever might be the effect of such a special provision. It is in the usual form. It conveys the property, but provides that if certain payments are made, then the instrument is to be void ; but if default be made in their payment, then the property may be sold. These provisions apply to the proceeds of the sale of water of the Virginia Ditch, as well as to the body and proceeds of the sale of water of the Diamond Ditch. Until default and a consequent foreclosure and sale, the defendants had no right to enter upon, or take possession of the premises, and having done so, they are liable to be' ejected" the same as any other intruder.

By the findings of the Court below it appears that the defendants took possession of the mortgaged premises by permission of the mortgagor, the Omega Ditch Company. But this was in the month of September, 1860, and by the same findings it appears that the plaintiff received the Sheriff’s deed, which constituted his title, on the twenty-first day of March, 1860. Therefore, at the time the Omega Ditch Company gave the permission to take possession, the title to the property and the right to the possession was "not in them, but in the plaintiff in this action. Hence, permission given by them at that time, conferred no right of entry upon the defendants.

Under these circumstances, if there was error in admitting the testimony of the witness Hawley, which is the main objection urged by the appellants, it was immaterial.

The objection that the respondents can only rely upon the point of the want of identity between the Omega Ditch and the Virginia Ditch, because that is the ground upon which the Court below based its conclusion of law, is not tenable. It does not appear that the conclusion of law was based alone upon that finding. The Court speaks of it as “ one of the main questions in the case.” Bésides, however clear it might appear that the Court below considered that a controlling fact, yet if the respondents can show, or if this Court perceives, that on the findings the decree was correct, the judgment must be affirmed.

Hone of the errors assigned affect the findings which, as we have above specified, establish the plaintiff’s right to recover in this action.

The judgment is therefore affirmed.