Opinion
Department Two Appeal from a judgment for the plaintiff in the Superior Court of the County of San Diego. McNealy, J.
The appeal was on the judgment roll and there was no bill of exceptions or statement.
COUNSEL
There seems to be three distinct and sufficient reasons why the transaction disclosed in this case cannot be denominated a mortgage.
1. Under our Code-- C. C. § 2923--" A mortgage can be created, renewed or extended only by writing, executed with the formalities required in the case of a grant of real property." (Porter v. Muller , 53 Cal. 677.) To constitute a mortgage the transaction must be between the parties to the deed. (Flagg v. Mann, 14 Pick., 480; Treat v. Strickland , 23 Me. 234; Warren v. Lovis , 53 id. 463; Low v. Henry , 9 Cal. 538; Payne v. Patterson , 77 Pa. St. 134.)
It seems to be the rule that without a defeasance, either written or in parole, that a deed, absolute on its face, will be construed as such.
The defeasance is the essential part of a mortgage. (Jackson v. Lodge , 36 Cal. 60; 1 Jones on Mortgages, § 241.)
Had there been a defeasance in this case it must have been to the grantors Fisher and McClellan. It could not be made to the plaintiff, for he is a third party, and whatever else such an instrument can be, it is not a defeasance.
M. A. Luce, for Appellant.
Leach & Parker, for Respondent.
Appellant claims, that as the conveyance was not executed by plaintiff, but by McClellan and Fisher, to him, it could not be a mortgage; and cites authorities to the effeet, that where lands are conveyed by a deed absolute in form, in order to constitute the transaction a mortgage in law, there must be a defeasance to the mortgagor. The same authorities show that the rule was different in equity; and we claim that at law it has been changed by the sections of the Codes above mentioned. (See Brinkman v. Jones , 44 Wis. 498; also Jones on Mortgages, section 252.) The complaint alleges, and the Court findsthat, at the date of the conveyance, plaintiff was the owner; and it matters not whether the instrument was a mortgage or deed of trust, the defendant having conveyed the property to innocent purchasers, and received the money therefor, must account to the owner.
OPINION The Court:
This is an action to recover a balance of moneys received by defendant from the sales of property of plaintiff which had been conveyed to defendant as security, after deducting amounts which defendant is entitled to retain. The findings are full as to the facts that plaintiff was the owner of the property and caused it to be conveyed to defendant as security; as to the sales by defendant and the receipt by him of the proceeds, and as to the balance in his hands belonging to plaintiff. We see no error in the record
Judgment affirmed.