Klumpke v. Henley , 24 Cal. App. 35 ( 1914 )

The petition for a transfer of the cause to this court after hearing and determination in the district court of appeal for the third appellate district is denied.

The affirmance of the judgment and order appealed from may properly rest on the following positions stated in the opinion of the district court: 1. That Henley had shown himself to be the owner of an undivided one-third interest in the premises; and, 2. That the plaintiff had failed to show, as against Henley, the acquisition of that one-third interest by prescription or otherwise.

The opinion goes further, however, and declares that even if Henley had not acquired title by a valid foreclosure, the plaintiff would be required to pay the mortgage debt as a condition to having his title quieted against the outlawed mortgage. The doctrine invoked is well settled (Burns v. Hiatt,149 Cal. 617, [117 Am. St. Rep. 157, 87 P. 196], and cases cited), but it has no application to a plaintiff who is not the original mortgagor and does not claim under such mortgagor. (Marshutz v. Seltzor, 5 Cal.App. 140, [89 P. 877].) This is the position of the plaintiff here. He does not assert title as successor to William C. Moreno or Mrs. Gonzales, the mortgagors, but claims adversely to them.

We do not, therefore, approve the part of the opinion which indicates a contrary view on this point. But, as has already been stated, the judgment of the district court of appeal does not require for its support a decision on this question.