Opinion
Department One
Appeal, by defendant Arpin, from a judgment for the plaintiff, and from an order denying a new trial, in the Seventeenth District Court, County of Los Angeles. Sepulveda, J.
Action for the foreclosure of a mortgage executed by the defendant Jacques Levy to the plaintiff, July 11th, 1876 (duly recorded). The defendant Arpin alleges in effect, in his answer, that on the 13th day of June, 1876, he (then being the owner) conveyed the premises described in the mortgage to one Simon Levy, by a deed absolute on its face, but intended only as a mortgage, and that at the same time Simon Levy executed to him a written defeasance to reconvey upon the repayment of money, which Levy agreed to pay, for costs and attorneys' fees, in an action then pending against Arpin, but which, in fact, he never paid; that Simon Levy afterward conveyed the land by a quitclaim deed to the defendant Jacques Levy, who took with full notice of Arpin's rights; and that the plaintiff also took his mortgage with full notice of all the facts above stated; that on the said 13th day of June, he (Arpin) was, and ever since has been, and still is, the owner, in open, notorious, and exclusive possession of said land, residing thereon, and cultivating the same, and every part thereof.
The Court in effect found the facts to be as stated in the answer, except as to the possession of Arpin, and notice to the plaintiff; and, on the former point, found as stated in the opinion, and on the latter, as follows:
" Seventh .--That at the time the plaintiff received the note and mortgage referred to from the defendant Levy, he did not know that Arpin was in possession of the land, nor did he have any knowledge whatever that Arpin claimed any interest in said land; that he did not know of the existence of the agreement referred to, nor did he have actual notice of any circumstances sufficient to put him upon inquiry as to Arpin's claim."
The defeasance referred to in the answer was not recorded.
COUNSEL:
One who purchases or takes a mortgage of land in the open, notorious possession of another, without inquiry, is not a purchaser or incumbrancer in good faith. (Partridge v. McKinney , 10 Cal. 181, 185; Lestrade v. Barth , 19 id. 660; Landers v. Bolton , 26 id. 418; Pell v. McElroy , 36 id. 271-3.) It makes no difference that he did not know of the possession. (Pell v. McElroy, cited supra .) Arpin claims adversely to Hellman's mortgage, and therefore his rights cannot be determined in this action. (San Francisco v. Lawton , 18 Cal. 465; S.C. 21 id. 589; Burton v. Lies, id. 87; Elias v. Verdugo , 27 id. 418; Croglan v. Spence , 53 id. 15.)
Bicknell & White, and J. S. Chapman, for Appellant.
A. H. Judson, for Respondent.
Possession has never been held to be constructive notice, unless such possession was open, notorious, and exclusive, such as inclosure, cultivation, etc. (3 Wash. R. P. 284); nor is it notice unless the fact of such possession is known to the purchaser or incumbrancer. This we claim has always been the rule; but under the Code there can be no doubt of it. (Story's Eq. Jur. § 400; 5 Johns. Ch. 29; Civ. Code, § 19; Jones v. Smith, 1 Hare, 43.)
JUDGES: McKinstry, J. Morrison, C. J., and McKee, J., concurred.
OPINION
McKINSTRY, Judge
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. 676; 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.