70 P. 778 | Cal. | 1902
Plaintiff Hooker was the purchaser at foreclosure sale of land which had been mortgaged by the Spencers. Defendant Rhodes, by assignment, had become the owner of a judgment which one Nicholls had recovered against Anna T. Spencer (in whom the legal title to the mortgaged property stood.) Nicholls's judgment was docketed in October, 1897. The mortgaged property was sold upon the 13th of June, 1898. Rhodes, as substituted judgment creditor under the Nicholls judgment, claimed his rights as redemptioner, and, by payment to the sheriff, effected a redemption of the mortgaged property, in due time receiving the sheriff's deed therefor. Thereafter Hooker commenced this action, making defendants Rhodes and the two sheriffs of Los Angeles County, the one with whom Rhodes's redemption had been effected, the other by whom the deed had been executed.
The facts are not in serious dispute. The controversies between the parties turn rather upon the legal consequences and effects of their admitted acts and transactions. Plaintiff for relief asked the cancellation of the deed made to Rhodes, that Rhodes be restrained from interfering with, or disposing of, the property, and that the sheriff be compelled to make proper conveyance to him. The court found that the mortgagor Spencer at the time of the docketing of the Nicholls judgment retained and had an interest in the property; that Rhodes was a redemptioner, and had duly redeemed, and gave judgment in accordance with these findings.
Appellant's contention is, that the Nicholls judgment never became a lien upon the property, because upon the 10th of June, 1897, Mrs. Spencer had conveyed all her right, title, and interest in and to the property to Orange E. Dickey. Orange E. Dickey upon the same day conveyed the property to Charles J. Shepherd. It is contended by appellant that these deeds were absolute and stripped Mrs. Spencer of the last vestige of title to the property in controversy. The court, however, found that at the date of the execution of *665 the deeds, and thereafter, Mrs. Spencer was indebted to Charles J. Shepherd in the sum of about $2,500, and that the deed to Dickey (proved to have been without consideration, excepting such as flowed to his grantee Shepherd) and the deed from Dickey to Shepherd were executed for the purpose of, and intended as, security to Charles J. Shepherd for the debt which Anna Spencer then owed him, and for future advances contemplated to be made to her and for her account, and that these deeds did not divest Anna Spencer of her title to the property. This finding, we think, is abundantly supported by the evidence. Mrs. Spencer had become involved, — she owed Shepherd; she experienced great difficulty by reason of lawsuits in retaining the property which she then owned; she was in debt and in litigation, and finally, through her attorney, as he testified, "the scheme was concocted" and carried into effect by which the deeds in question were made. Her attorney thus testified: "The purpose of making the deed was, that the property should be put in the name of Mr. Shepherd for the purpose of taking it and securing all the moneys that he had advanced, and if it became necessary for him to mortgage it, to do so, and that there should be no agreement back of it that anybody could dig up, and for the purpose of interfering — we had been handicapped in every way wherever we had gone to arrange for money, we had been told inside of twenty-four hours that somebody had been there making dire threats about what they were going to do with reference to ripping up any arrangements that we had made, because of the fact that Mrs. Spencer was involved." The alternative conclusion is forced therefore, from this and other like evidence, that the deed was absolutely void, as being in fraud of the creditors, or else that it was a legitimate transaction, by way of mortgage, to secure Shepherd in his preexisting debt, and in such other advances as he might make in the preservation of Mrs. Spencer's property. The court adopted the latter view, and, without elaborating upon the additional evidence in support of it, it is sufficient to say that the finding is fully sustained.
The effect of this finding is to establish Rhodes's position as a recognized redemptioner, and the remaining questions touch the matter of his redemption. The pertinent facts are the following: About the twelfth day of December, 1898, *666 Rhodes called up Hooker on the telephone and told him that he intended to redeem the Broadway property bought by him, and made an engagement to meet him at his place of business that day at 2 o'clock in the afternoon. Rhodes went to Hooker's place, and Hooker failed to meet his engagement. That evening, about 6 o'clock, Rhodes, accompanied by Mr. Anderson, drove to Hooker's residence, carried with him the notice required by law to make the redemption, and also carried $10,500 in gold coin, to pay Hooker the necessary amount to effect the redemption. The servant who answered the bell said that Mr. Hooker was in. Mr. Rhodes and Mr. Anderson requested her to tell Mr. Hooker that they wished to see him. Upon her return she said that Mr. Hooker was not in. They placed the money that night in a drawer of the First National Bank for safekeeping, but did not make a deposit of it. The next morning Clark and Rhodes went to the sheriff's office, saw the sheriff, told him that Rhodes was going to make a redemption, stated that Rhodes had the gold coin on hand with which to make the payment, and they would bring up the gold coin from the bank for that purpose. The sheriff responded that he would rather have a certified check than the money, and to bring up a certified check. The $10,500 in gold was then placed in the First National Bank, and Mr. Clark took out his certified check for $10,070 and delivered it to the sheriff for Rhodes in redemption payment. The sheriff accepted the check, and upon the same day notified Mr. Hooker that he had his money upon the redemption of the property. Hooker declined to accept the money from the sheriff. The sheriff, in fact, had not cashed the check, nor did he cash it until some eleven months later, after this suit was commenced. The check was then actually cashed, and the money upon it received in gold coin. The check could have been cashed for gold coin upon any banking-day prior thereto. Mr. Hooker did not know that the redemption had been effected by check until after the commencement of his action, when his pleading was amended to cover this point. He did, however, believe that the money had been paid, and had, as has been stated, refused to accept it. At the time this mortgage was executed, to make redemption it was necessary to pay the amount of the purchase money, with two per cent per month up to the time of redemption. In 1897 the code provision was changed, and *667 it now requires from the redemptioner the purchase money with one per cent per month from the date of the sale. (Code Civ. Proc., sec. 702) It is admitted that the amount actually paid, $10,070, was the amount of the purchase money, with one per cent per month added.
Upon these facts various propositions are advanced and argued.
1. That the check was the check of Clark, and that Clark was admittedly not a redemptioner, and that therefore there was no redemption. But Clark, it affirmatively appears, was acting as the agent of Rhodes and had declared himself to be so acting, and when the sheriff accepted the check he accepted it on behalf of Rhodes, and for the purpose of effecting the Rhodes redemption. If under all the circumstances of the case, which are to be considered hereinafter, the reception of this check amounted to payment, in proper amount and of proper money, appellant may not here be heard to complain that the check was not actually the check of Rhodes.
2. The same may be said of the further objection, that the judgment called for satisfaction in gold coin of the United States, and that the check was not in terms made payable in gold coin. But the check in fact was paid with gold coin, and if in other respects the transaction was regular, appellant has received precisely what the law entitled him to receive and has not been injured.
3. It is said that the tender and acceptance of the check constituted no payment whatsoever. Herein reliance is placed upon the case of Thorne v. San Francisco, (People v. Hays,)
The sheriff is made the agent of the purchaser for the purpose of receiving payment. It is true that his agency is a limited agency, and that his act does not bind the purchaser upon any matters outside of the payment, and only upon those when, in compliance with the law, payment in money sufficient in amount and kind has been made. In general mercantile and commercial transactions a check, after all, is but a convenient form of transferring money, and operates either as payment absolute or payment conditional, as the parties themselves intend. (Savingsand Loan Society v. Burnett,
In the case at bar it was wholly for the convenience and at the request of the sheriff that the certified check was substituted for the gold coin which was offered to be paid, and in seasonable time the check was cashed in gold coin and the actual money taken into the custody of the sheriff. The redemption in this respect was certainly sufficient.
4. It is next contended that the redemption was insufficient for the amount; that the law at the time of the making of the mortgage entered into and became a part of the contract; that by that law the redemptioner was required to pay two per cent per month in addition to the purchase money, while it is an admitted fact in this case that but one per cent was paid. In brief, it is contended that to permit section 702 of the Code of Civil Procedure, as amended in 1897, to operate upon the contract is to impair its obligation. Herein especial reliance is had upon the case of Barnitz v. Beverley,
This concludes a review of the principal points argued upon these appeals. Certain errors of the trial court in the admission and rejection of evidence are also presented. They have been examined, but we do not find that in any of them appellant has suffered injury.
The judgment and order appealed from are therefore affirmed.
McFarland, J., and Temple, J., concurred.
Hearing in Bank denied.