59 P. 597 | Cal. | 1899
The transcript in this case is disjointed and confused; but, as supplemented by a certificate of the clerk of the lower court filed here at the date of the oral argument, it is discoverable therefrom that this is an appeal by plaintiff from an order or judgment, rendered August 26, 1897, and entered in the judgment-book October 6, 1897, ordering and adjudging that plaintiff is barred from all equity of redemption, "or other right," to certain mortgaged premises described in the complaint, and dismissing the action. The parties to the action have produced complications by omissions to assert rights at the proper time and in the proper way, and by acts of such uncertain character as to create embarrassments which ordinary carefulness would have entirely avoided.
It is averred in the complaint, substantially, that plaintiff is the owner of certain described real property, and that defendant has a deed from plaintiff's predecessor in interest which on its face purports to absolutely convey said real property to the defendant, but that said deed was intended as a mortgage to secure a loan of three hundred dollars, with interest; that she tendered said amount to the defendant and demanded a deed from him, and that defendant refused to accept this money, and claims that he owns absolute title to the premises. The prayer is that the conveyance to defendant "be adjudged to be a mortgage," and that defendant be decreed to execute a conveyance to plaintiff of the property, and that upon his failure to do so the court appoint a commissioner to make such conveyance. The court found the facts to be as alleged by plaintiff. By the judgment it was decreed that upon the payment by plaintiff to defendant of the sum of three hundred and six dollars — the amount found to be due on the mortgage — the defendant execute a deed conveying the premises to the plaintiff, and upon his failure to do so that the clerk be appointed *256
a commissioner for that purpose. The judgment then proceeded as follows: "And if the plaintiff fails to pay to the said defendant the said sum of three hundred and six dollars, without interest, within twenty days after written notice of the entry of the judgment, that then she be barred from all equity of redemption, or other right to said property." The part of the judgment last quoted was unwarranted. It is definitely settled in this state that a deed absolute in form but intended as a mortgage is a mortgage, and conveys no title to the grantee named in the instrument. It has been declared that sections
Treating the judgment, as the parties treat it, as a proper *257 and valid judgment, the only two points presented are: 1. Is respondent's contention that appellant did not pay the money within twenty days after written notice maintainable? and 2. Was appellant's appeal from the order of judgment appealed from taken in time?
The judgment provided that the plaintiff should pay the money within twenty days "after written notice" of the entry of the judgment. It is not contended by respondent that he gave plaintiff any formal written notice of the judgment; but on June 28, 1897, he served on appellant's attorney a notice of a motion for a new trial in which the rendering of the judgment was noticed by way of recital. And the money was not paid within twenty days after that time. There is no question here of the sufficiency of a statutory notice, nor was the mere actual knowledge of appellant of the rendition of the judgment material. The question arose out of the express terms of the judgment, which required "written notice of the entry of this judgment." We think, therefore, that as appellant's right in the premises depended upon the commencement of the running of a certain period of time mentioned in the judgment, and as her title was to be forfeited unless a certain act was done within that period of time, she was entitled to a notice expressly intended for the purpose of starting the period of time mentioned in the judgment, and that a mere incidental recital in a notice of a motion for a new trial, given for an entirely different purpose, was not a sufficient compliance with the terms of the judgment.
We also think that the order of October 6th, entered on that day in the judgment-book, by which it was "ordered and adjudged that the plaintiff's action be and the same is hereby dismissed, and that plaintiff be and she hereby is barred from all equity of redemption or other right to the property set forth and described in said judgment," was and is as against appellant a final judgment, and that she had six months from its date in which to appeal therefrom. The motion to dismiss the appeal is denied.
The said judgment entered on the sixth day of October, 1897, is reversed and the cause remanded.
*258Temple, J., and Henshaw, J., concurred.