77 Cal. 548 | Cal. | 1888
Ejectment. The land in controversy was conveyed by the defendant to the plaintiff on February 17, 1872. It is a portion of the Mexican grant commonly known as the Corte Madera. A survey of the rancho had been made, but was not confirmed until the first day of March, 1885. The purchase price to be paid by plaintiff to defendant was sixteen thousand dollars, seven thousand five hundred dollars of which was paid at the time the deed passed, and plaintiff gave to defendant a. mortgage for the balance,—eight thousand five hundred dollars. The mortgage, which was executed by both parties, provided that the money should be payable "upon final confirmation of the survey, but that in no event should the money be due before November 1, 1872.” It further provided that Commins should remain in possession until confirmation, in lieu of interest upon the eight thousand five hundred dollars secured. On December 18,1872, Commins received from Coleman the sum of seven hundred dollars, and, to secure its repayment, if the survey should not be confirmed, executed to the latter an assignment of the mortgage “by way of mortgage.” On May 12, 1873, Coleman made another
No part of the principal sums thus advanced, or interest thereon, was ever paid by defendant. At the time of final confirmation of the survey, March 1, 1885, the principal and interest of the sums advanced by Coleman amounted to more than eight thousand five hundred dollars,—the amount named in the mortgage of plaintiff to defendant.
This action was commenced on September 11, 1885. The complaint contains the usual allegations in ejectment. The defendant filed a cross-complaint, claiming that the original mortgage had not been paid, and asking for a foreclosure and sale, and for a decree that he might be permitted to retain possession of the property until the mortgage was satisfied. The plaintiff filed an answer thereto, claiming that the principal and interest of his loans to Commins amounted to more than the money due upon his mortgage to Commins, and that this fact entitled him, under the terms of the assignment, to the possession of the land; and, as a counterclaim, that he was entitled to $1,781, the excess of the amount of principal and interest advanced to defendant over the eight thousand five hundred dollars, amount of the mortgage debt.
The court held that all interest on the advances made,
We are of opinion that the court erred in its construction of the contract of assignment. It is true, the phrase “payable monthly” is used in one place in the contract with reference to the payment of the interest on the seven hundred dollars “advanced and paid” by Coleman, but the provisions of the contract, when all read and construed together, make it clear, we think, that the parties intended the advances made by Coleman, with the interest due thereon at the time when he could be called upon by Commins to pay the mortgage, to be taken as an offset to or payment of the eight thousand five hundred dollars, to the extent of the amount of said advances, and interest thereon then due. It was impossible to tell at the time of the execution of the deed and the mortgage when the survey would be confirmed, or whether it would be confirmed at all. It was provided in the mortgage that, if confirmed, the eight-thousand-five-hundred-dollar mortgage debt would be due and payable; if rejected, that the contract might be rescinded by Coleman, and in that case Commins agreed “to refund and repay to said party of the first part in United States gold coin all sums of money paid to him on account of the purchase of said mortgaged lands and premises, with interest thereon in like gold coin, at the rate of one per cent from date of payment until repayment of same.” At that time, therefore, it is cléar the parties intended to wait until final action of the land department before adjusting their accounts as to either principal sums or interest thereon. This intention seems to have been carried through the subsequent agreements.
It is claimed by respondent that the rates of interest on the several sums advanced are exorbitant and oppressive. They certainly seem very high, but the statute in force at the time the contract was made read as follows: “Sec. 2. Parties may agree in writing for the payment of any rate of interest whatever on money due or to become due, and it shall be allowed according to the terms thereof until the entry of judgment thereon.” The illegality of usury is wholly the creature of legislation, and in this state nothing has been prescribed by the legislature to relieve parties from contracts providing for exorbitant rates of interest.
The plaintiff is not entitled to anything under his counterclaim. The amounts advanced by him, together with the interest thereon, were to be applied in payment of his eight-thousand-five-hundred-dollar mortgage debt, if the survey should be confirmed. It was only in case the survey was rejected, and the contract rescinded by Mm, that the several amounts advanced by him were
Judgment and order reversed, and cause remanded, with direction to the court below to enter judgment in favor of the plaintiff for the possession of the land and costs of the action.
Seabls, C. J., McFaeland, J., Shabpstein, J., and Thobnton, J., concurred.
Rehearing denied.