San Jose Safe Deposit Bank of Sav. v. Bank of Madera

SHAW, J.

The defendants appeal from a judgment in favor of the plaintiffs. The complaint states a cause of action to foreclose an equitable mortgage or lien.

The main question presented by the record is the question whether or not the cause of action is barred by the statute of limitations. This question depends upon the terms of the agreement between the parties with respect to the event which should make absolute and immediate the obligation of the defendant Mary Dworack, to repay to the plaintiff the moneys advanced by plaintiff in her behalf.

The case has been before this court on several previous occasions

(San Jose Safe Deposit Bank

v.

Bank of Madera,

121 Cal. 539, [54 Pac. 83, 270]; 121 Cal. 543, [54 Pac. 85]; 144 Cal. 574, [78 Pac. 5].) Upon the last appeal the judgment of the lower court was reversed and the cause remanded for a new trial upon the ground that the action was barred by the statute of limitations. In the complaint before the court in that case there was no allegation with respect to the time of maturity of the obligation to repay the money constituting the debt which the plaintiff sought to recover, and the court treated it as a debt which was due immediately upon its creation, and decided the case upon the theory that the statute of limitations immediately began to run.

The following statement of the facts alleged in the complaint, all of which are found to be true by the trial court upon sufficient evidence, will suffice to present the question involved in the case.

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Charles A. Dworack was the original owner of the land involved. In 1893 he executed a mortgage thereon for the sum of three thousand dollars, which was duly recorded. In July, 1894, he executed a second mortgage thereon to the defendant Mary Dworack, who was his mother, for the sum of eighty-five hundred dollars. The first mortgage was foreclosed in an action to which Mary Dworack was made a party defendant. An order of sale was issued and the land was sold upon this foreclosure for the sum of $3515.20. In January, 1895, Mary Dworack, as a second mortgagee, desired to redeem the property from this sale. She had no money with which to effect such redemption and thereupon applied to the plaintiff for the same. The plaintiff agreed that it would advance to her the money necessary for that purpose upon the arrangement that she should assign to the plaintiff all the rights which she would acquire in the land by reason of such-redemption ; that the certificate of redemption should be assigned to the plaintiff; and, if no other redemption was made, the plaintiff should obtain the deed of said property by such sale .from the sheriff of the county and hold the same as security for the money advanced. It was further, at the time, and as part of the same transaction, agreed between the plaintiff and said Mary Dworack that as soon as the sheriff’s deed was received by the plaintiff, the said Mary Dworack would repay to the plaintiff the money advanced by it for her and that thereupon the plaintiff would convey, or cause to be conveyed, to her the interest in the property which it would have acquired under the said sheriff’s deed. The redemption was effected in pursuance of this arrangement, the money therefore being advanced by the plaintiff. The certificate of redemption was first taken in the name of one Moultrie who immediately transferred the same to plaintiff. No other redemption was made and the right to a sheriff’s deed under the foreclosure, by reason of the sale and the subsequent redemption, had accrued to the plaintiff. Thereupon, the plaintiff applied to the sheriff for a deed of the property. Mary Dworack and Charles A. Dworack and the defendant, the Bank of Madera, conspiring together for that purpose, objected to the execution of said deed by the said sheriff, and interfered with and prevented the sheriff from executing the said deed as he otherwise would have done, and by such interference and objections, and