Stanton v. Quinan

91 Cal. 1 | Cal. | 1891

Temple, C.

This action is to foreclose a mortgage executed by defendant Quinan to one Saltón. The appeal is upon the judgment roll.

May 13, 1887, Saltón contracted in writing with Quinan for the sale of the ^property described in the mortgage for three thousand five hundred dollars, one thousand dollars payable at once, one thousand dollars on or before May 12, 1888, and fifteen hundred dollars on or before May 12, 1889. When the second payment was made, Saltón was to convey to Quinan, receiving a mortgage on the property for the last payment.

May 17, 1887, Grimes purchased the property from Quinan for four thousand dollars, payable, fifteen hundred dollars in cash, one thousand dollars May 16,1888, and fifteen hundred dollars May 16,1889. The contract was in writing, and contained a stipulation to the effect that upon full payment Quinan would convey the premises to Grimes free from all encumbrances. The two deferred payments were secured by negotiable promissory notes.

December 16, 1887, before any of the deferred payments in their contract became due, Saltón conveyed the property to Quinan, and took from him a mortgage to secure the money then due on the contract, made payable according to two promissory notes, being the mortgage and notes sued upon in this action, — one note for $1,055.90, due May 16, 1888, with interest at the rate of ten per cent per annum; the other for $1,574.38, payable May 16, 1889, with interest at ten per cent.

The rate of interest is the same as in the original contract; the notes became due four days respectively after the payments were to have been made under the contract.

Before the execution of the mortgage, Saltón knew of the purchase by Grimes, and the terms of his agreement with Quinan, and of the payment made by him; and the plaintiff purchased the mortgage with full knowledge of such facts. Grimes also, at thq time of his purchase, knew all the facts with reference to the contract between Saltón and Quinan.

Appellant contends that Saltón took the mortgage subject to his equities as purchaser from Quinan, and in this we agree with him, but we do not agree with his further contention that his interest in the land is not subject to the lien of the mortgage. Appellant was entitled to such rights with reference to the property as Quinan had under his contract. Saltón and Quinan could not rescind it or make its conditions more onerous. Had he asked for such relief, perhaps he would have been entitled to a decree that upon paying the amount due upon the contract, the mortgage should be satisfied and a deed made to him for the property. But he does not propose to pay anything. The difference between the amount due on the contract and the mortgage is but trifling, and is due to compounding the interest before it was due. The appellant is not complaining of that, but contends that by the change in the form of the debt and security, Saltón lost his lien. In this he is mistaken.

There is no merit in the objection made to the complaint, and if there were, such an objection could only be made by special demurrer.

We think the judgment should be affirmed.

Vanclief, C., and Fitzgerald, C., concurred.

The Court.—

For the reasons given in the foregoing opinion, the judgment is affirmed.