Hyperlawhypertext legal database Gregory v. Keating 3 Cal. Unrep. 208

← Cases

Gregory v. Keating

3 Cal. Unrep. 208 Court Cal. Decision date 1889-12-31 Docket No. 12,472 English

Delivered by THORNTON, J.

Contents

Majority

p. 208
GREGORY v. KEATING et al.
No. 12,472;
December 31, 1889.
22 Pac. 1084.

Headnote

Mortgages—Foreclosure—Modification of Judgment.—Where a defendant in a mortgage foreclosure claims an interest in the property adverse and superior to that of the mortgagee, and the findings by the trial court do not determine such claim, the judgment, which bars only the right, title, and equity of redemption of such defendant, will be modified so as to preserve, unaffected and unprejudiced, the adverse right so claimed.
APPEAL from Superior Court, City and County of San Francisco; E. B. Mahon, Judge.
Action by James B. Gregory against Denis Keating and Mary Jane Keating to foreclose three mortgages executed by said Denis Keating to plaintiff. Defendant Mary Jane Keating claimed an adverse and paramount title to the buildings on the mortgaged premises. Plaintiff obtained a judgment, and defendants appealed.
Mich. Mullany for appellants; A. H. Laughborough (Carter P. Pomeroy of counsel) for respondent.

In this case the judgment forecloses the mortgages executed to plaintiff, and subjects to sale the right, title, and interest of the mortgagor, Denis Keating, in the mortgaged premises. It forecloses and bars only the right, title, and equity of redemption of defendant Mary Keating as to such possession. It does not purport to affect in any way her prior adverse right to the buildings on the premises, if she has any. Nor do we see in the findings of facts anything determinative of the claimed adverse right of Mary Keating. The facts found as to her only bear on her right to remove the buildings from the land involved in the suit under the terms of the lease. On the return to the court below, that court is directed to modify the judgment so as to preserve the adverse right to the buildings set up by her, unaffected and unprejudiced by the judgment. On the

p. 209
making of such modification of the judgment, the judgment and order will stand affirmed.

We concur: McFarland, J.; Sharpstein, J.