106 Cal. 137 | Cal. | 1895
This is an action of ejectment.
The complaint is in usual form. The answer presents a special defense in equity, averring that the defendant H. D. E. Allen, being the owner of the lands in controversy, caused a transfer and conveyance of them to be made to plaintiffs as security for a debt; that plaintiffs received the transfer and conveyance and the land and premises thereby conveyed, and thereupon agreed to hold, and ever since have held, and now continue to hold, the same as security. The same facts are likewise pleaded by cross-complaint. Defendants ask that an accounting be had, and that they be allowed to redeem the land upon payment of any amount found due. The appeal is from the judgment alone.
The facts of this precise transaction will be found in Allen v. Allen, 95 Cal. 184, where this defendant, there plaintiff, sought to redeem against these plaintiffs, there defendants, the same land from the lien of the same mortgage. By that decision it was held that under the transfer and conveyances to plaintiffs herein they acquired the legal title to the property, leaving in defendants a mere equity of redemption; that the parties are deemed to have contracted in view of the rule of interpretation of such instruments expressed in Hughes v. Davis, 40 Cal. 117, and Espinosa v. Gregory, 40 Cal. 58; and that the debt to secure which the deed was made being barred, the right to redeem was also barred.
The trial court found that the judgment in Allen v. Allen, supra, was a bar to the defenses and equities pleaded in defendants’ answer and cross-complaints; and we think it was right in so finding.
The judgment upon the former appeal is determinative of the rights of either party to this transaction, and
The judgment appealed from is affirmed.
Temple, J., Garoutte, J., McFarland, J., Harrison, J., and Van Fleet, J., concurred.
