Arrington v. Liscom

By the Court, Sawyer, J.:

The plaintiff in his complaint substantially avers, that, one Light, in 1849, being then the owner of the premises described, conveyed them to one Harris, by deed- absolute in terms, hut coupled with a defeasance and a covenant that the same should be void on payment to said Harris of a certain sum of money according to conditions specified; that on nonpayment of the money, in accordance with said terms, said Harris, in a suit against said Light, in 1850, foreclosed said mortgage, and in March, 1851, purchased in the premises under the judgment of foreclosure; that subsequently, on the 9th of November, 1854, through sundry' conveyances, the plaintiff acquired the interest of said Harris in said premises, and entered into possession, and made large and valuable improvements thereon, and that ever since, down to the present time, he has been in undisturbed and adverse possession of the same; that subsequent to the execution of said deed and defeasance, and before the commencement of the said suit for foreclosure in 1850, said Light conveyed his interest in said mortgaged premises, but in express terms subject to said mortgage to defendant, Liscom; that said *369 deed to said Liscom is a cloud upon plaintiff’s title; and said Liscom has no valid claim to' said premises. He then asks that said Liscom be adjudged to quitclaim said premises to said plaintiff; that ■ said cloud be removed and said deed declared null and void as against plaintiff’s title thus acquired, and for such other relief as may be just and equitable.

The defendant, Liscom, answers, and, without denying any of the material allegations of fact in the complaint stated, sets them up affirmatively, and insists that inasmuch as he was not a party to the foreclosure suit, the mortgage was never foreclosed as to him; and that the legal title is in him by virtue of the said conveyance from Light, subject to said mortgage. As affirmative relief he seeks an account of the rents and profits, offering to pay any balance that may be found due, and asks for an affirmative judgment allowing him to redeem. The plaintiff demurs on the ground, among others, that the right to redeem is barred by .the Statute of Limitations. The demurrer to the answer was sustained, and the defendant declining to amend, judgment was entered for plaintiff in pursuance of the prayer of the complaint. There can be no doubt that an action to redeem was long since barred. This point was determined in Cunningham v. Hawkins, 24 Cal. 409, 410, and Grattan v. Wiggins, 23 Cal. 35. As to the affirmative relief sought, the appellant is the actor, and he is as clearly affected by the bar as if he had brought an independent action to redeem. But he insists that the plaintiff’s action is, upon the facts averred in the complaint, whatever he may choose to call it, a suit for a strict foreclosure, and as he has chosen to waive the statute and treat the mortgage as still subsisting, and the rights of the parties are mutual, the defendant is entitled to treat it as a live mortgage also, and the right to redeem is still a live equity. Calkins v. Isbell, 20 N. Y. 147, and Calkins v. Calkins, 3 Barb. 305, are relied on to sustain this view. In our judgment, however, upon the facts averred in the complaint, the action can in no sense be regarded as a proceeding *370 to foreclose the mortgage. The plaintiff never owned the mortgage, or the debt secured by it. He is simply a purchaser of the mortgaged premises from the purchaser under a judgment of foreclosure. The foreclosure, it may be conceded for the purposes of this case, was defective, because Liscom was not made a party and his title was not cut off. But the plaintiff was the purchaser of the land, not of the debt and mortgage. He simply got whatever title to the land passed by the Sheriff’s sale, be it good or bad, much or little. He avers no assignment of the debt, or mortgage, or the judgment. The complaint sets out many matters unnecessary to be stated, but no objection was made in the’ Court below in any form to the mode of statement, or its sufficiency. The cause of action averred, when stripped of unnecessary matter, seems to us to be this : that the plaintiff in 1854 entered into possession of the premises in question, under a conveyance, and that he has ever since, for a period of some twelve years, been in the undisturbed adverse possession of the premises under said conveyance, thereby acquiring a good title under the Statute of Limitations; that the defendant, Liscom, holds a deed from the same source of title antedating his own, which might, .at the time, have conveyed some interest to defendant, but which by the long adverse possession has ceased to have any vitality; that being of record, although no longer available to the defendant, it has become a cloud upon the title of plaintiff thus perfected as against the defendant by the Statute of Limitations. And the prayer is in accordance with this theory. The cause of action might have been averred in a better form, but this is the substance of it. And there is nothing in the answer to take the case out of the Statute of Limitations, or to avoid the title made under it, for adverse possession for the time specified in the statute in effect confers title. (Grattan v. Wiggins, 23 Cal. 36.) We know of no reason why a party who has been in adverse possession for a period of time, which, under the Statute of Limitations, vests him with a title against all the world, may not bring *371 his suit against a party claiming under a record title, to have the claim determined and adjudged null and void as against him. An apparently good record title would certainly be a cloud upon the title, acquired by adverse possession under the Statute of Limitations. It is of record, and when produced makes out a prima facie case, which can only be defeated by evidence of adverse possession, which is not of record, unless established in a judicial proceeding, but rests in parol, and is liable to be lost and established with difficulty. Such an apparent record title could not fail to be a cloud that would greatly decrease the value of the title acquired by adverse possession. The Statute of Limitations, as against a party claiming under a written title, would have performed but half its mission, as a statute of repose, if the party relying upon it must wait till he is attacked before he can reduce the evidence of his title to the form of a permanent record. We think a party in possession whose right is perfected by an adverse possession during the period prescribed by the Statute of Limitations, as well as others., is entitled to bring his action, under section two hundred and fifty-four of the Practice Act, to determine an adverse claim or remove a cloud which would thenceforth diminish the value of his property. In this - case the cause of action set up is an adverse possession of some twelve years under- a conveyance which gives a title under the Statute of Limitations, and an outstanding conveyance from the same source of title, which, under the circumstances alleged, became a cloud, and which the plaintiff asks to have adjudged to be a cloud, and to have removed. The plaintiff in no part of his complaint recognizes directly or by implication the existence of any valid or subsisting mortgage.' On the contrary, he denies that defendants have any valid claim or right, and insists that the conveyance from the original mortgagor is a cloud upon his own title. They even claim that the foreclosure is valid as against defendant, Liscom, and that he acquired a good title on grounds other than the Statute of Limitations. The action is in no sense *372 an action to foreclose the mortgage as against Liscom. We think the demurrer to the answer properly sustained.

Judgment affirmed.

[Note.—The foregoing opinion was delivered at the October Term, 186V. Subsequently, and before the delivery of the following opinion on petition for rehearing, Justices Sprague and Crockett succeeded Chief Justice Currey and Justice Shatter as members of the Court, and Justice Sawyer become Chief Justice.]