California Safe Deposit & Trust Co. v. Cheney Electric Light, Telephone & Power Co.

The opinion of the court was delivered by

Gordon, J.

The record in this case presents but a single 'question for our determination, viz., can a claim of prior and paramount, adverse title be litigated in a foreclosure suit. We think the question must be answered in the negative.

*139The rule is laid down in 2 Jones, Mortgages, § 1589, as follows:

“ Only the rights and interests under the mortgage and subsequent to it can properly be litigated upon a bill of foreclosure. One claiming adversely to the title of the mortgagor cannot be made a party to the suit for the purpose of trying his adverse claim.…