105 Cal. 70 | Cal. | 1894
This action was brought to have it adjudged that plaintiff is the equitable owner of the undivided one-fourth of each and all of certain lots of land in San Francisco; that defendant Edwards holds the legal title to the said fourth of some of said lots in trust for plaintiff, and that defendant Joseph F. Clark so holds the legal title to the fourth of the rest of said lots; and that, after an accounting and the payment of indebtedness found to be due from plaintiff, the said Edwards and Clark convey to plaintiff the said undivided fourth of said lots so held by them respectively. Other persons are made defendants, as claiming some interest in the premises, or as being necessary parties. The court below gave judgment for defendants, and plaintiff appeals from the judgment. There was also
The facts necessary to an understanding of the case are these: On November 20, 1870, the plaintiff, the defendant, Mary E. Bueknall, and John C. Davis, who were brother and sister, were the owners as tenants in common of certain lands which included the said lots involved in this action, and Eugene L. Sullivan was an owner in common with them in a part of said lands, and was also the owner of certain other lands in San Francisco. On that day—November 20,1870—-the said plaintiff, Bueknall, and Davis conveyed to said Sullivan all their interests in said lands; and on the same day two other instruments in writing were executed by and between said four persons, by which it was declared that the lands above referred to, including the lands which said Sullivan held in severalty, should all be held by said four persons as tenants in common, each having an undivided one-fourth; that the title should remain in Sullivan, and he should have absolute management of the property; that he should have a power irrevocable‘to mortgage or to sell and convey any of .said property “ upon such terms and conditions .... as he shall think fit.” The property was encumbered at the time with a large indebtedness; and it was declared that Sullivan held the property in trust " to administer, bargain, sell, convey, mortgage, or otherwise encumber and dispose of the same, or any estate or interest therein,” to discharge out of the rents and profits all indebtedness “ now or hereafter to be a lien on the same,” and at some future day to make division and partition among said parties. The other three were near relatives of Sullivan, and treated by him as his children, and he had been in possession of and had managed said property since the death of their father in 1850; and after the date of said instruments he continued in the possession and management thereof until his death, which occurred March 26,1885.
Afterwards, the defendant Mary E. Bucknall purchased from said Clark all the property that had béen conveyed to him as aforesaid by Sullivan, except certain lots which he retained. Mrs. Bucknall borrowed the money to pay for the land from defendant Edwards,
1. Appellant contends that he should have had judgment, because the original transaction between Sullivan and Clark was, in law, a mortgage, and that its character as a mortgage was not changed, and could not have been changed, by the subsequent acts of a surrender of the defeasance, the yielding up of the note, the discharge of the debt, etc.; and that, in order to make such a transfer valid, there must be some new consideration from the mortgagee to the mortgagor. This contention cannot, in our opinion, be successfully maintained. A mortgagor may sell and convey all his right and interest in the mortgaged premises to the mortgagee where the' transaction is fair, honest, and without fraud, and where no unconscionable advantage has been taken of his position by the mortgagee. It would be surprising if two men in their senses and with their eyes open could not make such a contract. The doctrine “ once a mortgage always a mortgage” does not refer to future contracts. In Washburn on Beal Property it is said that the character of a mortgage cannot be changed “by an agreement of the parties made at the time of the execution of the deed,” and that “ equity will not admit of a mortgagee embarrassing or defeating his right to redeem the estate by any agreement which he may be induced to enter into in order to effect a loan”; but that “ this does not preclude any subsequent bona fide agree
2. It is contended that the purchase of Mrs. Bucknall from Clark should inure to the benefit of appellant, because she and the appellant were original tenants in common, and beneficiaries under the trust. But by the transactions above stated the trust, as to the land purchased by Mrs. Bucknall, had come to an end, and the land had ceased to be common property. She had as much right to buy it as any tenant in common has to buy land which had formerly been common, but which had by the act of all the tenants in common, either in person or by an authorized agent, passed to a stranger.
The findings are sufficiently full, and we do not think that they are in conflict with the facts admitted in the pleadings. We do not see that any further discussion of the case is required.
The judgment is affirmed.
De Haven, J., and Fitzgerald, J., concurred.