55 P. 795 | Cal. | 1898
Action to recover the amount due on certain promissory notes. Plaintiff had judgment, from which, and from an order denying motion for new trial, defendant appeals.
Defendant, in his answer, by way of cross-complaint, claimed that he had conveyed to plaintiff certain real and
Appellant contends that the court should have found as to the value of the properties conveyed to plaintiff by defendant, and should have adjusted the rights of the parties as to all the matters put in issue. The evidence as to the character in which plaintiff held the title to the property of defendant was conflicting. There was evidence tending to show that plaintiff did not hold the title as security for the debt, and the finding upon that issue cannot be disturbed. When the court found that plaintiff held none of defendant’s property as security for the debt, it became immaterial, under the pleadings, for the court to find the value of this property. There was no occasion for an accounting, as defendant did not allege or claim that plaintiff had disposed of any of the property or converted any of it to his own use or benefit. There was no right of redemption involved, because the court found, upon sufficient evidence, that the property was not held as security. The ease simply stated is this: Defendant owes plaintiff money on certain promissory notes. Plaintiff holds certain property belonging to defendant, not as security, but as a naked trustee, which he avows a willingness to surrender to defendant. We cannot see that the court could have done otherwise than to give plaintiff judgment, and dismiss defendant’s cross-complaint, leaving defendant to such remedy as he may elect to pursue should plaintiff refuse to surrender defendant’s property. Neither the pleadings nor the facts warranted
We concur: Haynes, C.; Britt, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.