Marrier v. Lee

delivered the opinion of the court:

The appeal is from a judgment dismissing the complaint as to Annie E. Higgins and George Higgins.

The action was brought to foreclose a mortgage given by defendant, Lee, to the appellant, and from the findings it appears that Lee was in the actual occupancy of certain premises in Salt Lake City, the legal title to the same being in the mayor of said city, in trust under the “ town site laws.” With a full knowledge of this, and of the existence of the mortgage, the amount of which was taken into account in the purchase the defendant, Taylor, purchased the premises, receiving a deed therefor from Lee. Taylor subsequently acquired the legal title from the mayor, and on the same day conveyed the premises to the respondent, Annie E. Higgins, she also having full knowledge and notice of the mortgage. Upon the hearing the bill was dismissed as to the respondents, Higgins, it being determined that they held the property “ free and clear of said mortgage.”

This action of the court, we think, was error.

The respondents, Annie E. and George Higgins, having purchased the property with notice, stand in the same relation *462to the mortgagee as the defendant, Lee, and are with him equally estopped from setting upon an after-acquired title to defeat the mortgage. Clark v. Baker, 14 Cal. 612; San Francisco v. Lowton, 18 Cal. 477.

The judgment of the court below, in dismissing the bill as to the respondents, is reversed, and the cause is remanded, with directions to enter a decree of foreclosure subjecting the privies to said mortgage.