73 P. 813 | Cal. | 1903
This action was brought by plaintiff against Laurent Etchepare to recover certain money alleged to have been received by him as her agent and to obtain a decree requiring him to reconvey to her certain real property alleged to have been conveyed by her to said Etchepare, upon his false representations that she was indebted to him for money advanced, and for the purpose of securing the repayment of the same. *178
Plaintiff obtained judgment decreeing a reconveyance, upon the payment by her to defendant of the sum of $2,444.09, with interest from July 27, 1899, and defendant appeals from said judgment.
It is contended at the outset that the question as to the sufficiency of the evidence to sustain the findings cannot be considered by this court, for the reason that the appeal was not taken within sixty days after the rendition of the judgment, — i.e. within sixty days after the filing of the findings of fact and conclusions of law, which constitute the decision of the court.
The case was submitted to the trial court for decision prior to June 7, 1901, and decision was not rendered until July 11, 1901, on which day the findings were filed. Defendant Etchepare died on June 7, 1901, and his death was immediately thereafter suggested in open court. Defendant administrator qualified as such administrator on October 3, 1901, and on October 10, 1901, was substituted as defendant in place of said deceased. On October 14, 1901, judgment was filed, and the same was entered October 16, 1901. Notice of appeal was served and filed on December 12, 1901. Both findings and judgment contained a direction that they be respectively filed and entered nunc pro tunc as of June 3, 1901.
It has been held that a court may direct that its findings of fact and conclusions of law thereon be filed as of a date anterior to the death of a party defendant against whom judgment is thereby ordered. (Fox v. Hale Norcross S.M. Co.,
If in this case the findings had been properly filed on July 11, 1901, the authorities would compel us to hold that judgment was actually rendered on that day, and that the appeal was not taken in time to allow a review of the evidence. But that date also must be disregarded, we are satisfied, for the reason that at that time there had been no substitution of any representative of the deceased. The defendant having died, the court could, on motion, allow the action to be continued against his representative (Code Civ. Proc., sec. 385), but it could regularly take no action in the case until there was a substitution of some one to defend the action, especially as the death of the defendant had been suggested to it. The rendition of judgment nunc pro tunc in Fox v. Hale Norcross S.M. Co.,
When, however, we come to a consideration of the contention of appellant, that the evidence is insufficient to sustain the findings of the trial court, we can, as we look at the case, find no support in the record for his claim. The theory of plaintiff's complaint was, that the deed made by her to her agent, Etchepare, was a mortgage to secure the repayment to him of money fraudulently represented to be due him for money advanced by him, and that as a matter of fact he had received large sums of money belonging to her, and was at the time of the commencement of the action indebted to her. In his original answer, Etchepare denies that the deed was made for the purpose of securing him any amount of money, alleged that thereby the property had been absolutely conveyed to him for an adequate consideration, that he was the absolute owner of the same, and had from the date of the *180 deed claimed the same as his own. In his amended answer, filed by permission of the court during the course of the trial and after most of the evidence had been received, he alleged that the deed was made to him to secure the payment to him of all indebtedness due and to become due from plaintiff to him, including such amount as might be due or become due him as compensation for his services as her agent in the matter of her deceased husband's estate, thus admitting plaintiff's claim that the instrument was in fact a mortgage. He alleged that plaintiff was indebted to him in an amount exceeding thirty-five thousand dollars, secured by said mortgage. Waiving all question as to fraudulent representations, the material questions, then, for determination by the court were, — 1. What was the agreement of the parties to the deed as to the particular indebtedness to be secured by the mortgage deed? and 2. What was the condition of the accounts between the parties as to that indebtedness?
As to the indebtedness to be secured by the deed, the trial court explicitly found that the deed was made "to secure defendant in the repayment of moneys defendant had paid out forand advanced to plaintiff and for her use," and also "to secure defendant in the payment of such sums as he should thereafteradvance from his own estate to or for plaintiff," thus negativing the allegation of defendant's answer that any indebtedness that was due or might become due for commissions was secured by the deed. Construing the attempted specifications of insufficiency of evidence with the utmost liberality, we find no specification as to this finding. If objection thereto had been properly specified, we would still be compelled to hold that there was sufficient evidence to sustain it. As to the amount, the court found that there was a balance of $2,444.09 due to defendant, secured by said deed, "and that there was no other sum secured by said deed, and there was no other or further consideration for the execution of the same than as above found." No question is made by any specification of insufficiency that this finding was not correct, so far as the ascertainment of the balance due formoney advanced by defendant was concerned, and under the previous finding no other indebtedness could be considered in determining the amount of defendant's lien. These two findings sufficiently established plaintiff's right to *181
a reconveyance upon payment of the amount specified, and render many of the other findings immaterial. Much is said in appellant's brief as to the alleged error of the court in depriving defendant of commissions as agent of plaintiff. In view of the findings as to the object of this deed and the particular indebtedness to be secured thereby, the question as to the allowance or disallowance of commissions is not in the case, however strenuously counsel may have argued it. Any indebtedness for commissions was not by agreement made a lien upon the land, and the general rule is, that a mortgagee cannot require, as a condition of redemption, the payment of any other debt not a lien upon the land. (Mahoney v. Bostwick,
It is urged that plaintiff should not be allowed to maintain this action without having first paid or offered to pay her indebtedness. No such offer was necessary under the circumstances here appearing, and none of the numerous cases cited support appellant's contention. As found by the court, and as the evidence demonstrates, Etchepare had denied that he held the property as a mortgagee, and claimed the same as his own property; and the amount of the secured indebtedness was also in dispute, plaintiff claiming that it had been discharged and that there was a balance due her. Under these circumstances, the action could be maintained without any previous offer of payment, and it was proper for the court in such action to ascertain the amount of the secured indebtedness, and to decree a reconveyance upon the payment by plaintiff of any balance found due.
The awarding of costs to plaintiff was a matter within the discretion of the court, and the action of the court in imposing the costs on the defendant was fully justified by his repudiation of plaintiff's title and his refusal to account to her. *182
In addition to finding that the deed was executed by plaintiff to secure a certain indebtedness, and was a mortgage, the court found that it was also made "for the purpose of enabling plaintiff to take certain government land under the United States land laws, by enabling her to falsely represent that she was not the owner thereof." It is contended that this finding shows a contract contrary to express statute, public policy, and good morals, having for its object a fraud upon the government of the United States, and that for this reason the action should have been dismissed.
This finding is foreign to every issue made by the pleadings, and is directly opposed to the admission contained in the amended answer, that the deed was in fact executed solely for the purpose of securing an indebtedness, and was in fact a mortgage.
It has, however, often been held that where the defendant does not set up the defense of illegality, but such illegality appears from the case as made by either the plaintiff or the defendant, it becomes the duty of the court sua sponte to refuse to entertain the action. (See Kreamer v. Earl,
We are of the opinion that there was but one cause of action stated in the complaint, and that the demurrer for misjoinder was therefore properly overruled.
The judgment is affirmed.
Shaw, J., and Van Dyke, J., concurred.