Bull v. Shaw

Opinion — McKinstry

By the Court, McKinstry, J.:

The thirty-third section of the “ Act concerning conveyances,” provides in effect that if any person (not having the legal estate) shall convey land by conveyances purporting to convey the same in fee simple, and shall afterward acquire the legal estate, the estate subsequently acquired shall immediately pass to his grantee.

If Shaw had acquired the Government title after the execution of the mortgage, and, still later, had conveyed to Delaney, the latter and his heirs would have been es-*459topped from asserting such title against the mortgage, because, in that case, Delaney would have acquired the title from Shaw, in whose hands (by operation of the statute) it had already been subjected to the mortgage lien. (Kirkaldie v. Larrabee, 31 Cal. 455; Clark v. Boyreau, 14 Cal. 636.)

Delaney, however, did not deraign his title from the United States through Shaw, and the statute does not provide that any estate or title which may be acquired by the assignee or grantee of the mortgagor shall be bound by the mortgage.

Delaney was let into the possession by Shaw, but the latter had taken no steps to acquire the title from the United States, and it does not appear that he had contracted to acquire it for the benefit of his mortgagee. If he had acquired the government title, it would have been subservient to the mortgage; this, however, simply by virtue of the statute. The Courts could not recognize any supposed equity growing out of a contract (had any been entered into) that the mortgagor would secure the government title as additional security, because such contracts are in derogation of the policy and land laws of the United States. Delaney would occupy a position no less to be favored than that of his grantor.

The fact that he got possession from Shaw, does not affect the question. If he had acquired .a superior title from any other source than the United States, he could not have been deprived of the possession he received from Shaw by a purchaser at the mortgage-sale. That the possession was one of the elements employed in obtaining the title was merely an incidental advantage.

Judgment and order affirmed.

Neither Mr. Chief Justice Wallace nor Mr. Justice Niles expressed an opinion.