Henderson v. Grammar , 53 Cal. 649 ( 1879 )

By the Court :

We are of opinion that the finding by the Court below—that the assignments of the Certificates 1778 and 1779 to John McTucker, in his life-time, and of Certificate No. 744 to Mary McTucker Grammar since the death of said John, were made with intent to defeat plaintiff’s security—is not supported by the evidence, and the judgment must therefore be reversed for that reason.

It is apparent from the record, however, that Nathaniel McTucker having been the actual holder of the Certificate No. 744 at the time of the foreclosure of the plaintiff’s mortgage, and the assignments of the other certificates from Nathaniel to John McTucker not having been recorded, the foreclosure of the plaintiff’s mortgage and the sale thereunder had, under the statute, the same effect upon the title as though the heirs of John McTucker had been parties to the foreclosure proceedings. In this view the only relief which the defendants can have in this action, if any, must proceed upon their rights as junior mortgagees or for expenditures in perfecting the title; and in the present' condition of the answer; such relief cannot be had.

Judgment reversed and cause remanded. Remittitur forthwith.