22 Cal. 330 | Cal. | 1863
This is an action brought to redeem certain real estate from an alleged mortgage executed by the plaintiff to the defendant Platt, and to have a deed of the premises from Platt to the other defendants set aside and declared void.
The averments of the complaint, so far as they are material for this decision, are, in substance, that on the twenty-eighth day of October, 1861, the plaintiffs borrowed of Platt the sum of $6,000, and as security for the repayment executed to him a deed of the premises, being a tract of three hundred and twenty acres, absolute on its face, and that at the same time, as a part of the transaction, a defeasance in the form of a separate agreement was executed between the parties, by which the plaintiffs agreed to pay to Platt $6,000 and interest, on or before the first day of March, 1862, and he agreed to reconvey to them the premises on that day ; that the deed was recorded but the defeasance was not recorded; that between the first and tenth days of March, 1862, the plaintiffs have paid to Platt the sum of $4,570, by a transfer of a quantity of brandy and wine, the product of said premises, and since the tenth day of March, 1862, have offered to pay the balance due on said loan ; that at and ever since the making of said instruments the plaintiffs have been in the open and notorious possession of two hundred and twelve acres—part of said tract; that on the tenth day of March, 1862, Platt conveyed the premises to the other defendants, and that at the time of such conveyance the grantees knew of the existence of the said agreement to reconvey. The complaint then prays that an account may be taken of the balance still due to Platt, and that the plaintiffs be allowed to redeem, and that upon payment the deed from them to Platt be annulled, and the deed from Platt to the other defendants
The answer of Platt denies that the transaction was a loan, but avers that it was a purchase, and states that the agreement to reconvey was made after the sale, and denies any payment by a transfer of any brandy or wine or otherwise, or any offer to pay, or tender of any sum of money pursuant to said contract of defeasance.
The other defendants deny any knowledge of the existence of said agreement of defeasance at the time of their purchase, and aver that they are bona fide purchasers for cash paid at the time of purchase.
The answer of Platt and the answer of the other defendants admit that the plaintiffs were living upon the premises at the time of the conveyance by Platt to the other defendants, Platt averring that they were occupying as his tenants, and the other defendants averring that they only resided on the premises, but that Platt conducted the business of the ranch, and that Platt at the time of his conveyance to them assured them that there would be no difficulty about the plaintiffs leaving.
The deed from the plaintiffs to Platt and the agreement of defeasance bear the same date, and the proof shows that they were prepared and executed at the same time, and the defeasance contains a positive agreement by the plaintiffs to pay the money. These circumstances establish that the transaction wras a loan and that the deed and defeasance together constitute a mortgage.
On the trial, after the plaintiffs had closed their testimony, “ the defendants moved the Court to dismiss the complaint as to Platt, because the plaintiffs had introduced no evidence to prove a tender or offer to pay to the defendant Platt the amount due to him in case the deed from the plaintiffs to him was a mortgage. And as to the other defendants, because there was no evidence whatever against them.” This motion was granted. A motion for a new trial was denied, and from the order denying that motion and from the judgment entered in the action the plaintiffs appeal.
The dismissal of the complaint on the grounds stated was erroneous. Although it is common in a bill to redeem to state that an
It is urged that an action to redeem does not lie in this State before foreclosure. There is no peculiarity in the laws of this State in reference to mortgages "which takes from a mortgagor the right to redeem -which exists in other States. Our statute provides that a mortgage shall not be deemed a conveyance so as to enable the holder to recover possession of the mortgaged premises without a foreclosure. This enables a mortgagor to hold the possession as
What may be the exact character or extent of the relief the plaintiff will be entitled to against Platt and the other defendants respectively, it is not necessary now to decide. They were all proper parties, and if there may be a question as to some part of the relief asked against the defendants other than Platt, we do not think the allegations in that behalf require this Court to sustain the judgment of dismissal upon the ground of misjoinder of causes of action after that question had been decided on the demurrer, and the defendants had answered over, and the case has been tried and decided on the merits.
Judgment reversed and cause remanded for further proceedings.