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 P. 763]; Spect v. Spect,88 Cal. 437, [22 Am. St. Rep. 314, 26 P. 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 *Page 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 ofTownshend 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.