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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 subject to the mortgage, yet if the mortgagee, 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." 624 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's Equity Jurisprudence, secs. 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 not 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 list 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 grantor without payment of the debt: See Townshend v. Thompson, 139 N. Y. 152, 34 N. E. 891; Croner v. Cowdrey, 139 N. Y. 471, 36 Am. St. Rep. 716, 34 N. E. 1061; Shriver v. Shriver, 86 N. Y. 575; Cooke v. Cooper, 18 Or. 142, 17 Am. St. Rep. 709, 22 Pac. 945, 7 L. R. A. 273; Bryan v. Kales, 162 U. S. 411, 16 Sup. Ct. Rep. 802, 40 L. ed. 1020; Romig v. Gillett, 187 U. S. 111, 23 Sup. Ct. Rep. 40; Investment Sec. Co. v. Adams, 37 Wash. 311, 79 Pac. 625; Stouffer v. Harlan, 625 68 Kan. 135, 104 Am. St. Rep. 396, 74 Pac. 610, 64 L. R. A. 320; Backus v. Burke, 63 Minn. 272, 65 N.

W. 459.

Under the rule as declared in these cases, it is immaterial whether possession is taken with or without the consent, express or implied, of the mortgagor. In Backus v. Burke, 63 Minn. 272, 65 N. W. 495, the supreme court of Minnesota repudiated the doctrine enunciated in the earlier case of Rogers v. Benton, 39 Minn. 39, 12 Am. St. Rep. 613, 38 N. W. 765, relied on by plaintiff, to the effect that consent of the mortgagor, express or implied, is essential. In Bryan v. Kales, 162 U. S. 411, 16 Sup. Ct. Rep. 802, 42 L. ed. 1020, the supreme court of the United States declares the rule enunciated above to be the rule prevailing generally in the United States. In Stouffer v. Harlan, 68 Kan. 135, 104 Am. St. Rep. 396, 74 Pac. 610, is to be found an extended discussion of the question and the decisions thereon. It is there declared that the requirement of the rule that the mortgagee's possession must be obtained by lawful means does not mean that it must be obtained under a formal right capable of enforcement by legal process, but simply that it must not be obtained through any unlawful or wrongful act, upon which the mortgagee would be estopped to found a right. While decisions may be found upholding a contrary doctrine, we are of the opinion that the rule enunciated by the authorities cited is in full accord with equitable principles, and the necessary result of the views of this court as expressed in Brandt v. Thompson, 91 Cal. 458, 27 Pac. 763, Booth v. Hoskins, 75 Cal. 276, 17 Pac. 225, and Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203, 13 L. R. A. 137.

The justice of such a rule is shown by the facts of this case, where the possession peaceably and in good faith acquired under color of foreclosure proceedings has been peaceably and in good faith maintained thereunder for nearly five years, and, the debt being barred, now constitutes the only real security for the debt for which the mortgage was given. The mortgagee ought not to be deprived of the security thus obtained and held without payment of the amount thereby secured, and equitable principles prevent the accomplishment of such a result at the suit of the mortgagor or his successor. Plaintiff claims that his contention that plaintiff may recover possession without paying the mortgage debt is fully supported by the decision of this court in Davenport v. Turpin, 626 43 Cal. 597, and this may be admitted. But we are satisfied that, in so far as that case supports such a contention, it is so opposed to the principles enunciated in the later California cases already cited that it cannot now be accepted as authority. The other California cases cited upon the question as to what constitutes a mortgagee in possession we do not consider in point here..

As we understand the record, the land of plaintiff constituted only a portion of the mortgaged premises, and defendant purchased at the foreclosure sale and entered into possession of all the mortgaged premises, Under these circumstances, the land of plaintiff is justly liable for only a portion of the original debt. The amount of the debt, and the proportion for which plaintiff's land is justly liable are questions that could have been determined in an action brought by plaintiff against defendant to have these matters. determined, and possession awarded him upon paying the amount adjudged. Whether this can now be done in this

action, we do not decide.

The judgment is reversed and the cause remanded for such proceedings as are not inconsistent with the views herein expressed. Plaintiff shall not recover his costs of appeal. Defendant shall recover his costs of appeal.

Shaw, J., and Sloss, J., concurred.

A hearing in bank was denied September 29, 1906, upon which Beatty, C. J., delivered the following dissenting opinion:

BEATTY, C. J. I dissent from the order denying a rehearing. By the present decision the case of Davenport v. Turpin, 45 Cal. 597, is overruled, upon the assumption that it has been heretofore overruled, or set aside, by the decisions in Brandt v. Thompson, 91 Cal. 458, 27 Pac. 763, Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 213, and other cases. It cannot be contended that Davenport v. Turpin has ever been expressly overruled or drawn in question, and it has not been set aside by implication from the other decisions cited from our own reports for the reason that all those cases are clearly distinguishable on the facts. In those 627 cases the mortgagees went into possession lawfully under the mortgagor while he was entitled to transfer the possession. In this case the defendant took possession of plaintiff's lot unlawfully after his mortgagor had transferred his right of possession to the plaintiff. He was not in any just sense a mortgagee in possession. Of the decisions cited from other jurisdictions it may be said that with the single exception of Townshend v. Thompson, 139 N. Y. 152, 34 N. E. 891, they may all be distinguished by the fact that the mortgagee was rightfully in possession by consent of the mortgagor while he retained the title, or where the mortgagee had gone into possession under defective foreclosure proceedings, and where the controversy was wholly between mortgagor and mortgagee. Of course, in such cases the equity of the mortgagee against his mortgagor is more substantial than it is against a grantee of the mortgagor, whose right of possession by virtue of his grant has been violated by the unlawful entry of the mortgagee.

The decision in the New York case does support the present decision, but it cannot be held to justify a reversal of one of our own decisions which has stood so long as a rule of property.

Ejectment Against a Mortgagee in possession cannot be maintained while the mortgage debt remains unpaid, whether or not the right of foreclosure is barred by the statute of limitations. And a mortgagee who enters into possession under a void foreclosure, the mortgagor acquiescing therein, is a mortgagee in possession: Kelso v. Norton, 65 Kan. 778, 93 Am. St. Rep. 308, and see the cases cited in the crossreference note thereto. It has also been decided that when a mortgagee has taken possession by the consent of the mortgagor after a breach of the condition of the mortgage, he cannot maintain an action to recover possession until the debt is paid: Hooper v. Young, 140 Cal. 274, 98 Am. St. Rep. 56.

CRISMAN v. LANTERMAN.

[149 Cal. 647, 87 Pac. 89.]

MORTGAGE.—A mortgagor has the right to insist that the mortgagee shall not, by releasing the land which should pay the debt, throw upon him a personal liability therefor. (p. 171.)

MORTGAGE-Release of by Subsequent Trust Deed.-Whether a trust deed to secure the same indebtedness already secured by a mortgage accomplishes a merger of the mortgage, or, as it may be termed, a novation of securities, is a question of the intention of the parties, to be derived from their acts. (p. 172.)

MORTGAGE, When not Released by a Subsequent Trust Deed. If a trust deed given to secure indebtedness already secured by a mortgage provides that in case of a sale under the deed which does not realize enough to pay all the indebtedness, the parties shall have the same remedies to enforce the indebtedness as if the deed of trust had not been executed, the mortgage is not released, nor does it merge in the trust deed. (p. 173.)

APPEAL AND ERROR-Effect of Findings Where There is an Agreed Statement of Facts.-Where there are findings and also an agreed statement of facts, the former controls, if such statement details probative facts from which an inference either way may be drawn, and the ultimate fact as stated in the finding is not absolutely inconsistent with the agreed statement. (p. 176.)

ESTOPPEL BY SILENCE does not Exist Unless the party against whom the estoppel is invoked has stood by and seen the other party committing an act infringing on his rights, and his failure to speak has induced the person committing the act to believe that he assents to its being committed. (p. 175.)

ESTOPPEL-When does not Arise from Consenting to a Sale of Property Free from Encumbrances.-If a decedent was liable on indebtedness secured by a mortgage and also by a trust deed, consent by the executor to a sale of the property under the trust deed free from encumbrances, and to the subsequent release of the mortgage as to the property sold, does not estop him from insisting that, because of such release, the decedent's estate was relieved from liability for the mortgage debt. (p. 175.)

ESTATE OF DECEDENT, When not Bound by Act of Executor. If the executor of an estate is also a comaker with the decedent on promissory notes secured by a mortgage and also by a trust deed, attends the trustee's sale and demands that the proceeds thereof be applied first to his own debt, and last to that which, for the benefit of the estate, should have been paid first, he may well be deemed to be acting in his individual, rather than in his representative, capacity. (p. 176.)

MORTGAGE, Release of, Purporting to Reserve Right to Pursue the Mortgagor.-Where a paper declares that, without in any manner waiving the right to assert against the estate of a deceased mortgagor the unpaid balance of the principal and interest on a certain promissory note, the undersigned does remise, release, relinquish and discharge from said mortgage and from the lien thereof the mortgaged lands, the persons executing such paper are estopped from denying that it releases the mortgage against a person who had purchased such lands at a sale by the terms of which the purchase price was to be paid only upon a certificate of an abstract company that they were

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