Kirkaldie v. Larrabee
California Supreme Court
Appeal from the District Court, Tenth Judicial District, Yuba County. On the 16th day of September, 1861, John R. Larrabee, and Ellen M. Larrabee, his wife, were in possession of the southwest quarter of Section Five, Township Thirteen North, Range Four East, Yuba County, and on the same day mortgaged it to plaintiffs to secure a promissory note of even date. The land was public land at the date of the mortgage.
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Appeal from the District Court, Tenth Judicial District, Yuba County. On the 16th day of September, 1861, John R. Larrabee, and Ellen M. Larrabee, his wife, were in possession of the southwest quarter of Section Five, Township Thirteen North, Range Four East, Yuba County, and on the same day mortgaged it to plaintiffs to secure a promissory note of even date. The land was public land at the date of the mortgage. The granting clause in the mortgage was: “grant, bargain, sell and confirm unto the said parties of the second part, and to their heirs and assigns forever.” After the execution of…
1Opinion of the Court
By the Court, Sawyer, J.:
Had the deed been an absolute conveyance in fee instead of a mortgage in fee, any subsequently acquired title, under our statute concerning conveyances, would have inured to the benefit of the plaintiff. (Sec. 33.) The fact that the title subsequently comes from the United States would make no difference. There is nothing in the Homestead Act of 1863 forbidding a voluntary alienation by the grantee under that Act. The same principle applies to a mortgage of the fee. (Clark v. Baker, 14 Cal. 630.) The title will pass not merely in consequence of the enforcement of the…
2Cases cited5 opinions
- Clark v. BakerCalifornia Supreme Court · 1860
- Thredgill v. PintardSupreme Court of the United States · 1851
- Camp v. SmithSupreme Court of Minnesota · 1858
- Hope v. StoneSupreme Court of Minnesota · 1865
- Tartar v. HallCalifornia Supreme Court · 1853
3Cited by16 opinions
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- Christy v. DanaCalifornia Supreme Court · 1868
- Hubbard v. MulliganColorado Court of Appeals · 1899
- Moore v. TillmanSupreme Court of Arkansas · 1926
- Paige v. PetersWisconsin Supreme Court · 1887
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