9 Nev. 199 | Nev. | 1874
By the Court,
This action is brought for equitable relief and an accounting of the rents and profits of certain real property conveyed to defendant by deed, absolute upon -its face, but which complainant alleges was intended as a mortgage. In the year 1868 the complainant was the lessee of an unimproved town lot in Reno. He erected buildings thereon of the value of $2,000, retaining the right to remove them in
The district court found that the defendant took the conveyance with knowledge of Geller’s relation to the properly and as security for $1,750 and accrued interest. The property in question consists of several tenements, one of which, the Capital Saloon, the complainant occupied as owner from
Contemporaneous with defendant’s occupation of the Capital Saloon the defendant moved a stock of liquors therefrom to an adjoining tenement of the property and engaged in business there from July 6 to October 1. Upon closing bis business in the last mentioned tenement, known as the Echo Saloon, be leased it and collected rent therefor. No rent was paid by him or demanded from him, nor was be ever asked to account for rents received from bis lessee. Two rooms costing complainant $250 were constructed by him in the upper portion of the Capital Saloon building and occupied by himself and family to the day of trial, for which no rent was paid or claimed. Exclusive of this be expended about $400 in improving the property. His occupation and improvements were subsequent to May 16, 1871, the date of the conveyance, and were known to defendant.
J. C. Jones, a witness for complainant, testified that in the year 1871 be was indebted in a certain sum to one Martin. The debt was secured by a conveyance of real property. Martin demanded payment, and early in June, 1871, the witness endeavored to obtain a loan from defendant, whom be proposed to substitute for Martin. The defendant
The taxes upon the property were delinquent in December, 1871. The defendant paid them, remarking at the time that complainant should have paid them. If either Geller or defendant owned the property, why should complainant have paid the taxes ? No explanation of this circumstance was offered. Upon cross-examination, defendant admitted that in the spring of 1871 he gave complainant the refusal of purchase of the property for one year. The defendant’s offer to thus deprive himself and bestow upon complainant the advantage of any advance in the value of the property for one year is irreconcilable with want of knowledge of his equities. If the legal and equitable title were in defendant, the offer thus made was void for want of consideration, and within the statute of frauds. We must presume that the proposition was valid and an admission of complainant’s equities, and not an idle and insensible proposition, incapable of enforcement. These circumstances, fully established and in no wise controverted, except as stated, are strongly corroborative of the evidence adduced in support of complainant’s case, and justify the finding of the district court of knowledge of his equities on the part of defendant in taking the deed.
The loan from Geller to complainant of July 18, 1870, is not evidenced by writing nor was a day fixed for its payment. It, therefore, became due immediately; and as this suit was commenced against the successor in interest to Geller subsequent to July 18, 1872, the statute of limitations was interposed as a bar, upon the theory that the rights of mortgagor and mortgagee being reciprocal and the statute having run against an action upon the debt, the mortgagor had no remedy upon the mortgage. The remedy upon the debt is
Upon the accounting the defendant was denied a credit of $1,000 for improvements made by his lessee. A mortgagee in possession is entitled to allowance for necessary and proper repairs, but he will not be credited with costly improvements, though the value of the estate be increased thereby, unless made with the mortgagor’s consent. The law will not compel the debtor to pay for improvements he may. not have desired and which might place the estate beyond his power to redeem. Where, however, beneficial improvements are made in good faith under the belief of absolute ownership, they are allowed. We have already determined that the improvements in this case were not made under such belief, nor are they shown to have enhanced the value of the estate. The -questions of allowance for the management of the estate, and of tender, were not made below, and cannot be considered here.
Judgment affirmed.