The surrender of the defeasance and the discharge of the debt, for the very purpose and with the declared intent of passing the estate, operates in equity to estop the mortgagor and those in privity with him from treating the deed as a mortgage. (Trull v. Skinner, 17 Pick. 215; Green v. Butler , 26 Cal. 595; Wilson v. Carpenter , 62 Ind. 495; Vennum v. Babcock, 13 Iowa 194; Marshall v. Stewart, 17 Ohio, 356; Mussey v. Holt , 24 N.H. 252; Wiley v. Christ, 4 Watts, 199; Mallory v. Stodder , 6 Ala. 801; Nason v. Grant , 21 Me. 160; Fales v. Conway F. Ins. Co ., 7 Allen, 46.) The estate being absolute in Clark, Mrs. Bucknall had as much right to buy it as any one else, and the mere fact that she was a beneficiary would not absolutely debar her from dealing in the property.
M. Delmas, for Respondent. Section 2809 of the Code of Civil Procedure does not preclude a subsequent conveyance to the mortgagee upon an independent contract. (Green v. Butler , 26 Cal. 595, 601-603; Remsen v. Hay, 2 Edw. Ch. 542; Vennum v. Babcock, 13 Iowa 195; Jones on Mortgages, sec. 1046.) JUDGES: In Bank. McFarland, J. Sharpstein, J., Thornton, J., Works, J., Fox, J., Paterson, J., and Beatty, C. J., concurred.
By the deed of January 15th, 1850, from Sutter, Sr., to Pratt, the latter became vested with the legal title. (Green v. Butler, 26 Cal. 595; Vance v. Lincoln, 38 id. 586; Stokes v. Middleton, 4 Dutcher, N. J., 32.) It may be argued on the other side, that the deed from Sutter, Sr., to Pratt was a voluntary deed, and that as such it must be postponed to a subsequent deed for a valuable consideration, even though the subsequent purchaser took his deed with actual notice.
Though Courts of equity permit parol evidence to prove that a conveyance, absoluteupon its face, was intended as security, and in doubtful cases they will lean in favor of the right of redemption, and permit slight circumstances to determine the transaction to be one of mortgage, still they inquire into all the facts and circumstances to ascertain the intention of the parties, and will not do violence to their understanding. (See Hickox v. Low, 10 Cal. 197; People v. Irwin, 14 Cal. 428, and 18 Cal. 117; Green v. Butler, 26 Cal. 595; West v. Hendricks, 28 Ala. 226; Leading Cases in Eq. 624, notes.) Pringle & Pringle, for Appellant.