103 P. 221 | Cal. | 1909
This is an appeal by defendant Helen M. Moore from an order denying her motion for a new trial, after the making of an interlocutory decree in an action for partition of certain real property in Santa Cruz County. There is no appeal from the judgment. The only controversy on this appeal as shown by the brief of counsel is between defendant Helen M. Moore and defendant F.A. Hihn Company, a corporation, as to the ownership of an undivided seven fifteenths of the Moore Ranch, exclusive of that portion thereof set apart as a homestead April 26, 1881, to Helen M. Moore and her minor children, by the superior court of Santa Cruz County, in the matter of the estate of William H. Moore, her deceased husband.
By its answer, defendant F.A. Hihn Company alleged that it owns in fee simple absolute said undivided seven fifteenths of said land, having acquired the same by deed dated July 19, 1895.
By her answer defendant Helen M. Moore alleged that she is the owner in fee simple absolute of the same undivided seven fifteenths of said land. She further alleged that she acquired five fifteenths under the decree of final distribution made July 27, 1891, in the matter of the estate of her deceased husband, who died intestate October 30, 1871, and two fifteenths under the decree of final distribution made March 1, 1898, in the matter of the estate of her deceased son, William H. Moore, who died intestate May 5, 1896, the owner thereof, all of which is found by the trial court and is here conceded. She further averred that her deed of July 19, *769 1895, to the F.A. Hihn Company was for only an undivided five fifteenths, and that the same was executed "as security for the payment of certain promissory notes then and there executed by her, and also as security" for future advances and interest, and "though absolute in form was and is in fact a mortgage."
The trial court found that on July 19, 1895, said Helen M. Moore executed to the F.A. Hihn Company a deed of grant, bargain, and sale, purporting to convey all of the "Moore Ranch," that this deed "was intended to be and was a trust-deed, and that on July 23, 1895, there was executed by Helen M. Moore, as party of the first part, by F.A. Hihn Company, as party of the second part, and by Charles B. Younger, as party of the third part, a certain declaration of trust relative thereto," subjecting said deed to the provisions of said agreement, which is set forth in the findings. This agreement contained recitals to the effect that on July 19, 1895, Helen M. Moore conveyed to the F.A. Hihn Company "all her right, title, interest, estate and claim" in and to the Moore Ranch and other property, that all such interest had been sold at foreclosure sale on March 30, 1895, and said Charles B. Younger had on July 23, 1895, furnished her with the sum of $9538.16 to be used for redeeming the same from said sale, that in addition thereto she was indebted to Younger in the sum of $4933, and that she did on July 23, 1895, execute to Younger as evidence of her indebtedness to him, her promissory note for $14,471, payable one year after date, bearing interest at the rate of eight per cent per annum. It then provided that the F.A. Hihn Company "will manage the premises conveyed to it as aforesaid and will sell, exchange, partition, dispose of and convey" the premises, "either as a whole, or in such subdivisions and at such time or times as it may deem proper," applying the proceeds from "the rents, sales or other disposition of said premises": 1. To payment of taxes, insurance, and other necessary expenses in the management and protection of the property, including necessary litigation; 2. To payment to the F.A. Hihn Company of a commission of five per cent on all proceeds; 3. To payment to the F.A. Hihn Company of interest on all sums expended by it under the contract; 4. To payment to the F.A. Hihn Company of all money expended by it under the contract; *770 5. To payment to Younger of $14,471, with interest; and 6. The surplus, if any, to be paid to Helen M. Moore, her heirs or assigns. It was further provided that when Younger and the F.A. Hihn Company had been fully paid all sums due, with interest, said F.A. Hihn Company "shall, on demand by said party of the first part, reconvey to said party of the first part all its right, title and interest, estate and claim in and to the premises conveyed to it as aforesaid by said party of the first part, or such part thereof as shall then remain undisposed of by it." The court further found that the title to the two fifths acquired by Helen M. Moore as of May 15, 1896, from her deceased son, passed by operation of law to the F.A. Hihn Company by virtue of her deed of July 19, 1895, subject to the agreement last specified.
It was further found in terms that the F.A. Hihn Company was the owner of this seven fifteenths of the Moore Ranch, excepting that portion thereof constituting the "Moore homestead," "subject, however, to the agreement executed July 23rd, 1895," hereinbefore described, and that the other eight fifteenths were owned, two fifteenths by plaintiff and Charles D. Younger, two fifteenths by Charles Moore, two fifteenths by Stella Moore, and two fifteenths by Alice Hoffmann. The interlocutory judgment was in accord with the terms of this finding, it further decreeing that Helen M. Moore had no interest in any of said property other than such as she had under said agreement.
Appellant's statement on motion for a new trial contains the evidence and admissions of the parties showing all the facts as to the acquirement by Helen M. Moore of the seven fifteenths from her husband and her son, being the same facts in regard thereto stated in the findings of the trial court. It further contains the deed of July 19, 1895, from Helen M. Moore to the F.A. Hihn Company, and the agreement of July 23, 1895, hereinbefore described. This, it is stipulated in the statement, constituted all of the evidence given on the trial.
It is conceded here that the findings of the trial court in regard to the ownership of this property were sustained by the evidence, if the instruments executed by Mrs. Moore, the F.A. Hihn Company and Younger are to be regarded as a *771 deed of trust to secure the indebtedness of Mrs. Moore described therein, as distinguished from a mere mortgage, and if the undivided two fifteenths acquired by Mrs. Moore from her deceased son subsequent to the execution thereof passed by operation of law to the grantee for the purposes of the trust.
The deed of July 19, 1895, and the trust agreement of July 23, 1895, must be considered as parts of a single transaction, and so construed. There is no escape from the conclusion that the deed of Helen M. Moore to the F.A. Hihn Company "was intended to be . . . a trust-deed," as found by the trial court, and was not intended as a mortgage. It is urged that it was not a valid trust-deed, inasmuch as it was for some purposes not authorized by section 857 of the Civil Code, defining the purposes for which express trusts in relation to real property may be created. If we were compelled to hold that it was not a valid deed of trust, doubtless the rights of the parties could be preserved by holding the instruments to constitute an equitable mortgage or lien.(Earle v. Sunnyside Land Co.,
Upon the point that the instrument before us must be considered a valid trust-deed, rather than a mortgage, the case of More v.Calkins,
Upon the question whether the undivided two fifteenths owned by her son at the time of the execution of the deed and subsequently acquired by Mrs. Moore by inheritance, passed by operation of law to the grantee for the purposes of the trust, the district court of appeal said in the decision in this case: —
"It is not seriously contended that the deed of grant, bargain and sale made by appellant on July 19, 1895, describing the `Moore Ranch' would not, in the absence of any other agreement to the contrary, have conveyed the after-acquired title to the grantee therein named. It is fundamental that where a grantor, by proper instrument, purports to grant property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors. The effect of such deed as *773
matter of law is the same as if it were written upon the face that the grantor conveyed all the estate which he then possessed or which he might at any time thereafter acquire. (Civ. Code, sec.
We are satisfied that this is in all respects correct, and adopt the same as our views on the question.
The claim that the F.A. Hihn Company must be deemed to have waived its rights to any lien by reason of failure to set up in its answer the original amount due and the amount remaining due, with a statement as to the nature and extent of security, was not available to appellant on motion for new trial or on appeal from an order denying her motion, even if we assume that there is any foundation for such a claim. As we have said, there is no appeal from the judgment. No question of the sufficiency of the pleadings, or of the findings to support the judgment, is involved or can be considered on an appeal from an order denying a new trial (Great Western etc. Co. v. Chambers,
As was substantially said by the district court of appeal, the rights of Mrs. Moore are fully protected by the findings and judgment to the effect that the ownership of the F.A. Hihn Company is subject "to the said agreement executed July 23rd, 1895."
The order denying the motion for a new trial is affirmed.
Shaw, J., Sloss, J., Melvin, J., Lorigan, J., and Henshaw, J., concurred. *776