Power & Irrigation Co. of Clear Lake v. Capay Ditch Co.

(concurring). In its essential features, the cause of suit pleaded in the complaint is one to quiet title to rekl estate. The plaintiff has acquired by conveyance the title to land which its predecessor in interest had subjected to a mortgage. The mortgage lien has expired by limitation, but the deed,-which was intended as a mortgage, and the subsequent conveyances of the land constitute a cloud upon the plaintiff’s title. The plaintiff must, in equity, pay the mortgage debt in order to obtain the relief which it seeks. Its right to seek and obtain that relief does not depend, however, upon an assigned chose in action, but upon a deed of real estate. Said the court in Brown v. Fletcher, 235 U. S. 589 , 35 Sup. Ct. 154, 59 L. Ed. 374 :

The decision in that case is authority also for the proposition that section 24 of the Judicial Code was not intended to bring about any change in the law, but was intended merely as a continuation of the existing statute. Said the court:

That statute has been held applicable to cases where the plaintiff has acquired by assignment the right to foreclose a mortgage (Sheldon v. Sill, 8 How. 441 , 12 L. Fd. 1147; Blacklock v. Small, 127 U. S. 96 , 8…

(after stating the facts as above). Holding that the suit was based upon a chose in action the court below dismissed it because of the provision of section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 [Comp. St. 1913, § 991]) which declares:

In so holding' we are of the opinion that the court was in error.

[1] Briefly stated, the case made by the bill is primarily founded upon the. fact that the complainant’s predecessor in interest, the Central Counties Land Company, being the owner and in possession of the lands therein described, borrowed from the defendant Capay Ditch Company certain moneys, executing therefor its promissory notes, to secure the payment of which with interest it executed to the Ditch Company a deed to the property absolute in form, and that each of the other defendants took, in turn, whatever interest they acquired under that instrument, with full knowledge that, although a deed absolute in form, it was given, only as security for moneys loaned by the purported grantee to the purported grantor. The Civil Code of California expressly declares, in section 2924:

And the Supreme Court of the state has many times decided that, no matter how…