Hellman v. Levy & Arpin

McKinstry, J.:

It may be admitted that one who takes a mortgage of land in the sole and exclusive occupation of another than the mortgagee, can disprove notice of that other’s claim only by showing that he made every proper inquiry in respect to the rights of the possessor and failed to obtain information. That such should be the effect of a possession, however, it must appear that the possession is open, visible, exclusive, and unambiguous. (3 Washburn on R. P. 284.) Open and notorious possession is sufficient to put a purchaser on inquiry. (19 Cal. G76 ; 29 id. 490.) The sixth finding of the Court below is as follows:

“ That the defendant, Arpin, had resided on the land in controversy for several years prior to his deed to Levy, and has continued to reside thereon ever since, having a house on said land, and having cultivated the same every year, but not having the same inclosed; that he is an unmarried man, living alone, and frequently goes to the city of Los Angeles, and it did not appear whether he was actually on the land at the time the mortgage was executed, or whether he was temporarily absent therefrom.”

We are not authorized to say that a finding of these facts necessarily determines the defendant’s open and notorious possession, or conclusively determines that plaintiff was put upon inquiry, as against the positive finding, (No. 7) that plaintiff, when he took and recorded his mortgage, had no notice of the claim of defendant, Arpin.

Judgment and order affirmed.

Morrison, C. J., and McKee, J., concurred.