A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.
§ 744.Mortgage Not Deemed Conveyance Enabling Owner to Recover Possession Without Foreclosure and Sale
Title 10. Actions In Particular Cases · Chapter 3. Actions for the Recovery of Real Property, and Other Provisions Relating to Actions Concerning Real Property · Enacted 1872 · no amendments on record · Last verified July 28, 2026
In one sentenceSection 744 provides that a mortgage on real property is never treated as a conveyance, no matter its wording, so the mortgage holder cannot recover possession of the property without first foreclosing and selling it.
Full Text of § 744
Plain-English Summary
California treats a mortgage as a lien on the property, not a transfer of title to it, and § 744 states that principle directly. Regardless of how a mortgage's language is worded, it isn't deemed a conveyance that would let the mortgage holder take possession of the property outright.
The only way for a mortgagee to recover possession is through foreclosure and sale — the judicial process § 726 requires. This is part of what makes the one-action rule work: because a mortgage never functions as a conveyance, the mortgagee has no shortcut around foreclosure to get the property back.
Frequently Asked Questions
Can a mortgage be worded so that the lender can take possession without foreclosing?
No. Section 744 says a mortgage is never deemed a conveyance, no matter its terms, so it can't be used to bypass foreclosure and sale.
How does a mortgage holder recover possession of the mortgaged property?
Only through foreclosure and sale, the process § 726 governs.
Amendment History
Enacted 1872.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: mortgage not a conveyance californialien theory mortgage possession