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formance of any obligation." In Stiles v. Cain, 134 Cal. 171, 66 Pac. 232, Mr. Justice Temple says on this subject: "There are, then, contracts which are perfectly valid, and which a court of equity will not set aside for fraud, mistake, or for any unfairness, but which, nevertheless, are so unfair that specific performance will not be decreed. This has always been the rule with courts of equity. They will not aid in the enforcement of a harsh and unjust contract, even though it be valid." This doctrine has been repeatedly affirmed by this court in other cases. Agard v. Valencia, 39 Cal. 302; Nicholson v. Tarpey, 70 Cal, 609, 12 Pac. 778; Kelly v. C. P. R. R. Co., 74 Cal. 562, 16 Pac. 386, 5 Am. St. Rep. 470; Morrill v. Everson, 77 Cal. 114, 19 Pac. 190; Ward v. Yorba, 123 Cal. 447, 56 Pac. 58; Windsor v. Miner, 124 Cal. 494, 57 Pac. 386; Fleishman v. Woods, 135 Cal. 261, 67 Pac. 276. These are all cases in which the vendee was seeking to compel the vendor to perform the contract by the execution of a deed. But this does not affect the rule of the Code. It applies with equal force to both parties. There is no reason why the "conscience of a chancellor" should not be as tender toward the buyer as toward the seller, if he is the victim of an unconscionable bargain.

The rule that the party seeking in equity the specific performance of a contract must aver facts which affirmatively show adequacy of consideration, and that it is just and reasonable as to the other party, is also well settled. In the first case on the subject (Agard v. Valencia, supra) the court says: "Another well-established rule in courts of equity is that in a suit for a specific performance it must be affirmatively shown that the contract is fair and just and that it would not be inequitable to enforce it. The court will not lend its aid to enforce a contract which is in any respect unfair or savors of oppression but in such cases will leave the party to his remedy at law. It is incumbent on the plaintiff, therefore, to state such facts as will enable the court to decide whether the contract is of such a character that it would not be inequitable to enforce it." Bruck v. Tucker, supra, is to the same effect. In Stiles v. Cain, supra, upon this proposition the court said: "This does not mean that it must be alleged in hæc verba that the contract was supported by an adequate consideration, and is, as to the defendant, fair and just. These might be held insufficient, but the fact that the contract is such as will satisfy the conscience of the chancellor, in the respects mentioned, must appear from a proper statement of facts." The same rule of pleading is declared in Ward v. Yorba, supra, Windsor v. Miner, supra, Prince v. Lamb, supra, Nicholson v. Tarpey, supra, Morrill v. Everson, supra, and Fleishman v. Woods, supra. The effect of these decisions is that the mere statement of the price agreed to be paid, as

in this case, will not suffice. There must be a showing of the value, at least, so that the court can determine whether or not it was in reasonable proportion to the price to be paid, or of other facts which are sufficient to satisfy the court that the contract is just and reasonable to the buyer in all its material elements. There is an entire absence of anything of this nature in the complaint under consideration. The answer alleged that the value of the land at the time of the contract did not exceed $4,400, which was considerably less than one-half the price that Sage was to pay. The finding is evasive upon this question. There is no finding of the actual value of the land, but it is said therein that it is not true that "the said land was of the value and worth not exceeding the sum of $4,400," which finding could be true if the land was worth only $1 more. The failure to find on this issue also requires a reversal of the judgment. There is a bill of exceptions in the record, the authenticity of which is disputed, from which it appears that the uncontradicted evidence was that the value of the land did not exceed $4.400, so that if this bill of exceptions could be considered the finding. even in its evasive forin, would be contrary to the evidence. But we do not consider it necessary to determine the question whether the bill of exceptions is properly in the record or not. It being incumbent upon the plaintiff to allege in his complaint facts showing adequacy of the consideration, and that the contract was just and reasonable as to the defendant, the demurrer should have been sustained, and for this error and the failure to find the value the judgment must be reversed, regardless regardless of the question whether the evidence sustains the findings.

It is but fair to the court below to say that there is nothing in the record, or in the briefs, indicating that this defect in the complaint was ever called to its attention in argument.

The judgment is reversed, with directions to the court below to sustain the demurrer to the complaint and for further proceedings.

We concur: ANGELLOTTI, J.; SLOSS, J.

(149 Cal. 677) EDWARDS v. LECHLEITER (LECHLEITER et al., Interveners). (Sac. 1,210.) (Supreme Court of California. Sept. 5, 1906.) 1. APPEAL-REVIEW-FINDINGS BY COURTCONFLICTING EVIDENCE.

Findings of the trial court, based on a material conflict in the evidence, will not be disturbed on appeal.

2. VENDOR AND PURCHASER-IMPROVEMENTS. Where the purchaser of land took possession before paying the purchase price, and contracted that all buildings placed upon the land should be the property of the seller until the seller should be repaid advances that might be made by him to the purchaser, and the wife of the purchaser knew of the contract, the fact that one

of the buildings was erected with her money did not entitle her to claim ownership of the building as against the seller, who had not been paid the purchase price or his advances.

Department No. 2. Appeal from Superior Court, Yolo County; E. E. Gaddis, Judge.

Action by D. P. Edwards against J. A. Lechleiter, in which Mrs. J. A. Lechleiter and others intervene. From an order denying a new trial after judgment for plaintiff, defendant and certain interveners appeal. Affirmed.

Wm. M. Sims, for appellants. Chas. W. Thomas, for respondent.

MCFARLAND, J. Judgment in the trial court went for plaintiff. The defendant, J. A. Lechleiter, and the interveners Mrs. J. A. Lechleiter and Emma Lechleiter, made a joint motion for a new trial. This motion was denied; and from the order denying it the defendant and interveners appeal. There is no appeal from the judgment.

shall be sold according to the law relative to the sale of property under execution, and the proceeds of the sale, or as much thereof as shall be necessary, applied to the satisfaction of the expenses of the sale and to the payment of the said sum of $2,184.66, and costs. It appears that at one time plaintiff and defendant agreed that $1,100 was the amount due for the advancements made by plaintiff, and that defendant gave plaintiff a note for that amount bearing interest, and, also, a chattel mortgage of all the property, as additional security. This chattel mortgage was of no material importance, except as showing the amount due for advancements at the time of its date. As there is no appeal from the judgment, no question arises as to its sufficiency in form or substance.

On the appeal from the order denying the motion for a new trial there are a few exceptions made to rulings on the admissibility of evidence, but we see no error in these rulings, and, moreover, they relate to matters of no vital consequence. The main points made by appellants are that the findings are not supported by the evidence, but there was material evidence in support of all the findings. The principal contention of defendant is that the $1,100 was the whole amount due including the $800 to be paid for the lots, but the testimony of plaintiff was directly to the point that the $1,100 was for the amount of the advancements, and was in addition to the $800 and, while the testimony of defendant contradicts that of plaintiff on this point, still there was on the subject only that material conflict of evidence which placed the determination of the fact entirely within the province of the trial court.

There is nothing in the contentions of the interveners. The intervener Mrs. J. A. Lechleiter is the wife of defendant, and her claim is that the residence building on the plaintiff's lots was destroyed by fire, and that it was rebuilt with her money. It is useless to inquire whether or not there was evidence enough to support that contention. She knew that plaintiff owned the lots, and knew of the contract between plaintiff and defendant, and there is no principle upon which she could claim ownership of the building erected on

About one-half of the transcript consists of numerous, voluminous, and rather wearisome pleadings and findings. The court found, in accordance with the material averments of the complaint, that on or about February 28, 1889, plaintiff was, and still is, the owner of three described lots of land in the town of Willows in Yolo county; that at said time the defendant contracted with plaintiff that he would pay to the latter the sum of $800 for said lots; that in pursuance of such contract defendant entered upon the possession of the lots and erected thereon a machine and blacksmith shop and placed therein certain machinery, implements, tools, etc., for the operation of the same, and constructed thereon a dwelling house; that it was also contracted between the parties that plaintiff should advance to defendant all the money necessary for the construction of said buildings and for the equipment of said shop with machinery, apparatus, implements, and tools, and that all the buildings, machinery, tools and other personal property placed by defendant on the lots should be, and remain, the property of the plaintiff until defendant should have repaid to plaintiff all the advances that should be made by the lat-plaintiff's land. The other intervener is deter as aforesaid, and with interest; that plaintiff did advance money to defendant for said purposes to the amount of $1,100; that the defendant has not paid to plaintiff any part of the $800 to be paid for the lots or of the said $1,100 advanced by plaintiff; and that there is now due from defendant to plaintiff upon said contract the sum of $2,184.66. The judgment is that, if defendant shall pay to plaintiff the said sum of $2,184.64, with costs, within 60 days after the entry of the judgment, the plaintiff shall execute to defendant a deed conveying and transferring to him all the said property; but, if defendant shall fail to pay said money within said 60 days, then all the property

fendant's daughter, and her claim is that she got a money judgment in a justice's court against the defendant, and that execution issued thereon, and was levied on the property here involved. There is no evidence in the record showing the issuance or levy of such execution, but neither such execution or judg ment would be of any value against the property of plaintiff herein.

The order denying a new trial is affirmed, and it is ordered that the 60 days mentioned in the judgment do now commence to run from the date of the filing of the remittitur on this appeal in the lower court.

We concur: HENSHAW, J.; LORIGAN, J.

(149 Cal. 617)

BURNS v. HIATT. (Sac. 1,403, 1.410.) (Supreme Court of California. Aug. 30, 1906. On Rehearing, Sept. 29, 1906.)

1. MORTGAGES-FORECLOSURE-ACTION - PARTIES-PURCHASER FROM MORTGAGOR.

The title of a purchaser from a mortgagor is not affected by foreclosure proceedings to which he is not made a party.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1685, 1685.]

2. SAME-OPERATION-INVALID FORECLOSURE. The foreclosure of a mortgage without bringing in one who purchased the property after the execution of the mortgage does not devest the lien as to such purchaser's interest.

[Ed. Note.--For cases in point. see vol. 35, Cent. Dig. Mortgages, §§ 1682-16851%.] 3. QUIETING TITLE-PERSON ENTITLED TO RELIEF-MORTGAGOR-INVALID FORECLosure.

A purchaser from a mortgagor after the execution of the mortgage, who has not been made a party to subsequent foreclosure proceedings, cannot maintain action to quiet title against the mortgagee without offering to pay the debt, even though it is barred by limitations. [Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Quieting Title, § 46.]

4. MORTGAGES FORECLOSURE EFFECT-INVALID PROCEEDINGS-POSSESSION.

A mortgagee who has foreclosed his mortgage without bringing in a purchaser from the mortgagor, and who has entered into possession under such proceedings, though without the consent of such purchaser, is entitled to retain possession until his lien is released by payment, even though the debt is barred by limitations. [Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1682-168516.] 5. SAME-LIEN-MANNER OF RELEASE.

Where a mortgage covering more land than was included in a sale made after the execution of the mortgage was foreclosed without making the purchaser a party, and possession of all the property was taken by the mortgagee, the owner of the portion sold was only obliged to pay a portion of the debt to release his property from the mortgage lien and secure possession thereof. [Ed. Note.-For cases in point. see vol. 35, Cent. Dig. Mortgages, §§ 784, 785.]

Department 1. Appeal from Superior Court, Yolo County; A. J. Buckles, Judge.

Action to quiet title by D. M. Burns against G. W. Hiatt. From a judgment determining the parties' rights, plaintiff and defendant appeal. Reversed on defendant's appeal, and remanded.

E. B. Mering, G. V. Martin, and W. A. Anderson, for plaintiff. A. C. Huston, for defendant.

ANGELLOTTI, J. This action was brought by plaintiff to obtain a decree quieting his title to the west 22 feet of lot 2, in block 4, in the city of Woodland; he alleging in his complaint that he was the owner and entitled to the possession of said property. The complaint was in the usual form of complaints in actions to quiet title. Judgment was given, first, that plaintiff was the owner in fee simple and entitled to the possession of said property; second, that he owns the same "subject to the rights of the defendant, Hiatt, under a certain indenture

of mortgage made, executed and delivered on the 18th day of August, 1892, by George H. Jackson to the said G. W. Hiatt"; third, that said Hiatt has no right, title, or interest in said premises, "except such right, title, or interest as may be derived by the said Hiatt, under the said mortgage"; and, fourth, that a certain foreclosure proceeding instituted by said Hiatt on said mortgage, and the decree, judgment, and all proceedings therein, are null and void so far as plaintiff is concerned, and in no way bind him. These are appeals from said judgment, one by the defendant from the judg ment in favor of plaintiff, and the other by. plaintiff from that portion of the judgment decreeing that his ownership of the property is subject to the rights of defendant under said mortgage. Both appeals are on the judgment roll.

According to the findings of the trial court, based upon appropriate allegations in that behalf contained in defendant's answer, the material facts are as follows: On August 18, 1892, one Jackson was the owner and in possession of the property in controversy and other property, and on that day he borrowed $1,000 from defendant, giving him his note therefor, payable one day after date, with interest at the rate of 9 per cent. per annum, and also, as security for the payment thereof a mortgage on said premises, which mortgage was duly recorded on August 22, 1892. On November 29, 1893, said Jackson executed and delivered to plaintiff a grant,. bargain, and sale deed of the property in controversy, which deed was duly recorded on the same day. On August 15, 1896, said note and mortgage being wholly unpaid, defendant commenced an action against Jackson for the foreclosure of said mortgage. Plaintiff was never made a party to this action. Proceedings were had in such action, resulting, on December 1, 1898, in a judgment for the sale of the mortgaged premises and the application of the proceeds to the payment of the amount found due, viz., $1,344.89. At the sale so ordered, defendant became the purchaser for the sum of $1,200. He subsequently, on August 30. 1899, received from the commissioner appointed to make the sale a deed for the premises, and immediately entered into the possession of all of the mortgaged premises, and has ever since been, and now is, in the actual and peaceable possession of the same, claiming to own the whole thereof. The court further found that the possession of said premises taken by defendant after the delivery of the commissioner's deed was without the consent of the plaintiff, and also that the note and mortgage are barred by the provisions of section 337 of the Code of Civil Procedure.

This action to quiet title was commenced on July 22, 1904, almost five years after defendant's possession commenced. Plaintiff not having been made a party to the fore

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closure proceedings, his title to the mortgaged premises was, of course, in no way affected thereby. It is the universally accepted rule wherever a mortgage is only a lien not only before, but after, default in its conditions on the part of the mortgagor, that the title of the grantee of mortgaged premises is not affected by a foreclosure of the mortgage in an action commenced after the conveyance to him, unless he is made a party to the action. As to him, under such circumstances there is no foreclosure. This is not disputed by defendant. It does not, however, follow from this that he is entitled to a decree quieting his title against the mortgagee. He took the property under his deed from the mortgagor, subject to the lien of the mortgage, and as to such lien, he thenceforth stood in the place of the mortgagor. The proceeding to enforce such lien, although ineffectual against plaintiff by reason of the fact that he was not made a party, did not operate to divest the lien. His rights were in no way affected by the proceeding, and he acquired no additional right thereby. He simply continued to be the owner of the property, subject to the lien which had not been enforced; his situation in this regard being precisely the same as it would have been had no attempt to foreclose been made. The mortgage was not extinguished by the ineffectual attempt to enforce it. It is clear that where, for any reason, foreclosure proceedings are void, the legal title continues subject to the lien of the unpaid mortgage, and it appears to be well settled that a purchaser of the property at a foreclosure sale in such void proceedings thereby becomes an assignee of such mortgage, and the debt thereby secured, of which the mortgage is an incident, with all the rights of the original mortgagee. See Miner v. Beekman, 50 N. 1. 337: Townshend v. Thomson, 139 N. Y. 152. 34 N. E. 891; Turman v. Bell, 54 Ark. 273, 15 S. W. 886, 26 Am. St. Rep. 35; Cooke v. Cooper, 18 Or. 142, 22 Pac. 945, 7 L. R. A. 273. 17 Am. St. Rep. 709 Bryan v. Kales, 162 U. S. 411, 16 Sup. Ct. 802. 40 L. Ed. 1020; Bryan v. Brasius, 162 U. S. 415, 16 Sup. Ct. 803, 40 L. Ed. 1022; Investment Sec. Co. v. Adams (Wash.) 79 Pac. 625: Frische v. Kramer's Lessee, 16 Ohio, 125, 47 Am. Dec. 368; 2 Jones on Mortgages, § 1395.

So far, therefore, as the claim of plaintiff that his title should be quieted against the mortgage is concerned, we have the case presented in Brandt v. Thompson, 91 Cal. 458, 27 Pac. 763, viz., that of a party standing in the position of a mortgagor seeking to quiet his title against the mortgagee, without paying or offering to pay the debt for which the mortgage was created. It is the settled rule in this state that this cannot be done, even though the mortgage debt he barred by the statute of limitations. In Brandt v. Thompson, supra. which was an action by a mortgagor in possession to quiet his title against the mortgagee under such

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way for a party in respondent's position to quiet a mortgage is to pay it. * * * Respondent can have no remedy in the premises without paying or tendering the amount due appellant on his mortgages." The same rule was previously applied in Booth v. Hoskins, 75 Cal. 276, 17 Pac. 225, which was also an action to quiet title by a mortgagor in possession, and in which the mortgage debt was barred by the statute of limitations. In Spect v. Spect, 88 Cal. 437, 26 Pac. 203, 13 L. R. A. 137. 22 Am. St. Rep. 314, which was an action in ejectment by the successor of the mortgagor against a mortgagee in possession, it was pointed out that the rights. which grow out of the relations existing between mortgagor and mortgagee, as well as the remedies for the enforcement and and protection of those rights, are of equitable origin and are origin and are to be determined by the principles of equity, whether the right be asserted or the remedy sought in an action. at law or in equity. It was there said: "Whenever a mortgagor seeks a remedy against his mortgagee, which appears to the court to be inequitable, whether it be to cancel the mortgage as a cloud upon his title, or to enjoin a sale under the power given by him in the security, or to recover from the mortgagee the possession of the mortgaged premises, the court will deny him the relief he seeks, except upon the conditions that he shall do that which is consonant with equity." It was further declared in that case that the fact that the debt is barred by the statute of limitations is immaterial in such a case; the statute barring the remedy only, and not extinguishing, or even impairing, the obligation of the debtor. As long as the obligation to pay the debt exists, it is not equitable that the mortgagor should have relief against the mortgage given to secure the same, and such relief can be given only on condition that he discharges the obligation. From what has been said, it is clear that plaintiff cannot complain of the judgment. He was not entitled to a judgment decreeing him to be the owner of the property free and clear of the alleged mortgage. It is suggested by him that the defendant in his answer does not set up any equity. He does fully set up the facts already stated, which show such equity, and we know of no reason why this is not sufficient.

Another question is presented by defendant's appeal from the judgment. Is he thereby given everything to which he is entitled upon the facts already stated? While the judgment declares that plaintiff's ownership is subject to the rights of defendant under the mortgage, and probably saves to defendant the right to take such affirmative proceedings as the law allows for the collection of the debt, a somewhat valueless privilege if

the statute of limitations has run against | subject to the mortgage, yet if the morthis debt, as the court finds, it also undoubtedly entitles plaintiff to take and retain possession of the property. He is expressly adjudged as against defendant to be "the owner in fee simple and entitled to the possession" of the property, and this adjudication as to his right to possession is not at all qualified by any other portion of the judgment. The defendant, standing in the position of a mortgagee, is in possession of the mortgaged premises; this possession having been taken without the consent of plaintiff, standing in the position of the mortgagor, but having been taken and peaceably retained by him under a claim made in good faith that he owns the same by virtue of the attempted, but ineffectual, sale made in the foreclosure proceedings. By the judgment the person standing in the position of a mortgagor is given possession of the mortgaged premises without being compelled to pay the mortgage debt. The question is thus presented as to whether a mortgagee who has entered into and holds possession of the mortgaged premises, under such circumstances, can be thus disturbed in his possession, at the suit of a mortgagor having the legal title, who does not pay or offer to pay the mortgage debt.

In Spect v. Spect, supra, it was declared that, in consonance with the equitable principles applicable in the determination of the relative rights of mortgagor and mortgagee, "it is a settled rule that a mortgagor cannot maintain ejectment against his mortgagee until the debt is paid." This was said with reference to a mortgagee who had been placed in possession by the mortgagor; and as to such a case it is not seriously disputed by plaintiff that the rule is as stated in that case. It is universally declared by the decisions that ejectment will not lie on behalf of the mortgagor against a mortgagee who may properly be called a "mortgagee in possession." The contention of plaintiff is that no one can be included in that term unless he has entered into possession by reason of the agreement or assent of the mortgagor or his assigns that he have such possession under the mortgage and because of it-that, the mortgage being a mere lien not entitling the mortgagee to possession, some assent on the part of the mortgagor thereto is absolutely essential to a right to possession in the mortgagee. If we disregard all equitable considerations, this position of plaintiff is apparently impregnable. But the rule is based solely upon equitable considerations (see Spect v. Spect, 88 Cal. 443, 26 Pac. 203, 13 L. R. A. 137, 22 Am. St. Rep. 314), and, we think, means more than plaintiff's contention would make it mean.

Mr. Pomeroy, in his Equity Jurisprudence, declares the doctrine established by the courts in this matter to be that, while the mortgagee is declared to have no legal estate and is unable to recover possession against an unwilling mortgagor or owner of the fee

gagee, while the mortgage is still subsisting, does "in any lawful manner" obtain the possession, his interest under the mortgage enables him to retain such possession, and to defend it against the mortgagor, or those succeeding to his title. He further says: "If, through his [the mortgagor's] express consent, or through any other lawful means, the mortgagee has been permitted to obtain possession of the land, the mortgagor's only remedy is the equitable suit for a redemption." While admitting that it is difficult to reconcile this doctrine, on principle, with the theory that the mortgage is purely a lien, he declares that the doctrine is retained by the courts as settled. 3 Pomeroy, Eq. Juris. §§ 1189, 1190. Thus stated, in a manner which seems to us to be fully warranted by the authorities, the true rule would appear to be that where the mortgagee has, under color of the mortgage or legal proceedings based thereon, acquired possession without resort to force, fraud, or any other unlawful or wrongful means upon which he would be estopped to found a right, and under such circumstances as not to make it inequitable that he should retain such possession as security, he will be regarded as a mortgagee in possession, and his possession will not be disturbed at the suit of the mortgagor, unless the mortgagor first pay the mortgage debt. So stated, the rule is in consonance with the equitable maxim that he who seeks equity must do equity, and with the well-recognized rule applicable in determining the relative rights of mortgagor and mortgagee that, whatever the mere form of the action as shown by the complaint, the courts will not aid the mortgagor in obtaining a remedy that is inequitable, and will grant him the relief sought to which he may be entitled under strict legal rules only upon the condition that he shall do that which is equitable.

A long line of authorities holds that, where for any reason foreclosure proceedings are void, not only does the mortgage continue alive for the benefit of the mortgagee, or the purchaser at the foreclosure sale, as his assignee, but also, if the person entitled to the benefit of the mortgage peaceably and in good faith, under color of such foreclosure proceedings, enter into possession of the mortgaged premises, he does obtain possession in a lawful manner and is a mortgagee in possession, with all the rights incident thereto, and cannot be dispossessed by the mortgagor without payment of the debt. See Townshend v. Thomson, 139 N. Y. 152, 34 N. E. 891; Croner v. Cowdrey, 139 N. Y. 471, 34 N. E. 1061, 36 Am. St. Rep. 716; Shriver v. Shriver et al., 86 N. Y. 575; Cooke v. Cooper, 18 Or. 142, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709; Bryan v. Keles, 162 U. S. 411, 16 Sup. Ct. 802, 40 L. Ed. 1020; Romig v. Gillett, 187 U. S. 111, 23 Sup. Ct. 40. 47 L. Ed. 97; Investment Sec. Co. v. Adams (Wash.) 79 Pac. 625; Stouffer v. Har

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