120 Cal. 152 | Cal. | 1898
The sole question presented is as to the validity of the contract under which Davenport received the deed of
Appellant’s contention is that the contract was void because it was in effect an agreement for the forfeiture of the mortgaged premises in the event of the failure to pay by July 1st, and was in restraint of the right of redemption—in contravention of section 2889 of the Civil Code; and that the contract being void, the deed found to have been delivered in pursuance thereof is tainted with the same vice. But under the facts found we are unable to perceive wherein the transaction is to be distinguished in any material respect from that sustained in Watson v. Edwards, 105 Cal. 70, 75, and in McDonald v. Huff, 77 Cal. 279; nor in fact why the question is not in effect concluded by what is said on the same subject on the former appeal. (Bradbury v. Davenport, 114 Cal. 593; 55 Am. St. Rep. 92.)
And in McDonald v. Huff, supra, it is held that such a transaction is complete and operative and irrevocable from the delivery of the contract and deed to the depositary, and is effectual to vest the legal title in the grantee upon the conditions of the contract being fulfilled.
The correctness of these principles is fully recognized in the opinion filed on the former appeal. That was an appeal from a judgment entered on demurrer sustained to the complaint on the ground that it did not state a cause of action. The judgment was reversed, not because of a failure of the court to indorse the doctrine of the cases above cited, but because it was conceived that by reason of certain averments in the complaint the transaction was shorn of the element of fairness and good conscience requisite to bring it within the rule of those cases. The complaint in this respect alleged in effect that the making of the contract and deed was unfairly induced by the representations of the mortgagee while the mortgagor was sick and unfit
The supposed inequitable features presenting themselves for discussion in the former opinion are thus swept away and eliminated from the case, and what is there said on that subject is consequently wholly inapplicable to the case disclosed by the findings. This leaves the case, as suggested above, squarely within the doctrine of Watson v. Edwards, supra, and the other cases cited.
The judgment is affirmed.
Harrison, J., and Garoutte, J., concurred.