MORTGAGES 251858 IN CALIFORNIA. A PRACTICAL ESSAY, BY JAMES DE FREMERY. A's Hage SAN FRANCISCO: J. J. LECOUNT, PUBLISHER. 1860. Entered according to Act of Congress, in the year 1860, BY JAMES DE Fremery, in the Clerk's Office of the United States District Court for Northern California. PRINTED BY B. F. STERETT, CLAY STREET, PREFACE. A residence in California from 1849 to the present time, experience in the investment here of capital, and the loss of time necessarily involved in obtaining a practical knowledge of the laws directly and indirectly affecting mortgages in this State, in the absence of a concise publication on the subject, suggested to the writer the utility of the present essay, which is chiefly intended as a means of information for such as have, or may have, funds invested here under his care. Actual results demonstrate that loaning on mortgage in California, as in many other countries, is a very desirable mode of placing funds at interest, provided it be done with that care and prudence which should everywhere be observed in the matter of mortgages,-which does not forget the lesson: in dubio abstine,—and which takes into due consideration the influence which various changes of circumstances may have. So likewise has experience shown that in this State, right and justice for the mortgagee, as well as for the mortgagor, are in harmony, and that the taking of money on mortgage may in a great degree promote the interests of the mortgagor. It is true, the interest on mortgages, though not high in comparison with the rates of interest paid on all other loans, is much higher here than in many other countries, the supply of capital not being equal to the large demand for it; but mortgagors on the other hand may derive in proportion greater benefits from its use. The principal cause hereof is the peculiar nature of circumstances in California, which offers so wide a field for industry, and for the development of its resources generally, and where the words of the Lord: "replenish the earth," are finding their fulfilment in such a striking manner. The experience obtained in investing money in California, in the discharge of his duties as agent of several capitalists, and under the advice habitually sought, for a course of years, of counsel of extended business and conceded position at the San Francisco bar-to whom also his acknowledgments are due for valuable suggestions on reading his sketch,-has enabled the writer to compile the information which is contained in this essay. It is submitted as a synopsis of legal principles, governing actual cases which may be encountered by capitalists placing money on mortgage in this State, but as will be readily perceived by a reference to its contents, it formed no part of the author's plan to furnish a systematic treatise upon the theory of mortgage securities. Of such works there are several of undoubted authority, as for instance, Hilliard's valuable work on the Law of Mortgages, but they are necessarily voluminous, covering the whole subject of the law of mortgages and its analogies. Besides, without previous professional reading and attainments, they are difficult of application, if not for want of time to investigate, practically inaccessible to the mass of business men; and it is to such, and to all others who feel an interest in the matter, that the following pages are now offered by one of their class. JAMES DE FREMERY. SAN FRANCISCo, February, 1860. LIST OF REPORTS REFERRED TO. Add. & Ell. Barb. Ch. Conn. Cow. Cranch. Dall. Denio. Dev. Edw. Adm. Adolphus & Ellis' Reports, Queen's Bench. Barbour's Rep. Court of Chancery of New York. Reports of the Supreme Court of California. Cheve's Rep. Court of Appeals, South Carolina. Peters' Condensed Rep. United States Supreme Court. Reports of the Supreme Court of Connecticut. Cowen's Rep. Supreme Court of New York. Cranch's Rep. U. S. Supreme Court. Dallas' Rep. U. S. Supreme Court, etc. Denio's Rep. Supreme Court of New York. Devereux's (Law) Rep. Supreme Court, North Carolina. Eng. Law and Eq. English Rep. in Law and Equity, House of Lords, etc. Freem. Ch. Gallis. Geo. Gilman. Halst. Ch. Hare. Freeman's Chancery cases (Eng.) Gallison's Rep. U. S. Circuit Court, 1st Circuit. Reports of the Supreme Court of Georgia. Halsted's Rep. Court of Chancery, New Jersey. How. S. C. Rep. Howard's Rep. U. S. Supreme Court. Illin. Johns. Reports of the Supreme Court of Illinois. John. Ch. Labatt. Labatt's Rep. District Courts, California. Leigh. Mad. Maine. Marshall, J. J. Mason. McAllister. McL. Leigh's Rep. Court of Appeals, Virginia. Maddock's Rep. Vice Chancellor of England's Court. J. J. Marshall's Rep. Court of Appeals, Kentucky. |