Bowen v. May

Decided January 15, 1859

California Supreme Court · decided 1859-01-15

This was a bill for the foreclosure of a mortgage. The action was brought upon notes and a mortgage executed by both of the defendants. The mortgage is in the usual form of a joint mortgage; and, to secure the payment of three several promissory notes given for the purchase money of a mining claim, grants, bargains and sells to the plaintiff the said premises.

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Decided 1859-01-15

How this case has been cited

Cited by 5 later decisions — most recently January 1953

1 federal appellate · 4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Terry, C. J.,

¶1delivered the opinion of the Court—Field, J., and Baldwin, J., concurring.

¶2The provisions of the thirty-second section of the Practice Act, which, in an action against two or more defendants, all of whom are not served with process, authorizes judgment to be entered to bind the joint property of all, does not apply to proceedings for the foreclosure of a mortgage on real estate.

¶3The fact that two persons join in a mortgage of lands does not raise a presumption that the estate conveyed is joint property. Joint tenancies are not favored by our system—the statute having abrogated the common law rule of conveyances in this respect—so that in order to constitute a joint estate in lands in two or more persons, such estate must be expressly declared in the conveyance itself, otherwise the estate conveyed will be held by the grantees as tenants in common. Wood’s Dig., art. 380.

¶4Judgment reversed and cause remanded.