Locke v. Moulton

VAN DYKE,J.

—On the second day of October, 1885, the defendant Moulton, who was then the owner of and in possession of the real property in controversy, executed and delivered to the plaintiff a certain instrument in writing, purporting on its face to be a deed of grant, bargain, and sale. The consideration expressed was $1,500, and the instrument recited that it was made subject to a deed of trust executed by said defendant Moulton, December 17, 1884, to secure the Stockton Savings and Loan Society in the sum of $4,240 and interest. This action was brought November 24, 1890, and is in the nature of ejectment. In his answer, Moulton denies that the plaintiff is or ever was the owner of the land described, or entitled to the possession thereof, and as an affirmative defense alleges

[146]

that from the twenty-seventh day of April, 1870, to the fifteenth day of July, 1890, he was the owner in fee and in 'possession of said premises, and that on the latter date, for a valuable consideration, he conveyed said land to the defendant S. M. McCloud, and on that date executed and delivered to him a grant, bargain, and sale deed therefor; that the instrument executed and delivered to the plaintiff by him, said Moulton, on the second day of October, 1885, although in form a deed absolute, was in truth and in fact intended to be and was a mortgage to secure the payment of the sum of $6,127.50, with interest thereon at the rate of ten

per cent per

annum, which said sum was then and there owing from said defendant Moulton to the plaintiff, and said deed of conveyance was made and delivered only as a mortgage for the purpose of securing the payment to plaintiff of said sum of money, and for no other purpose whatever.

The case has been here before on two several occasions. On the first trial, judgment in the court below went for the plaintiff, and this court, on the appeal

(Locke

v.

Moulton,

96 Cal. 21), held that the evidence was amply sufficient to justify the conclusion that the instrument in question was intended to be and was in fact a mortgage, the court saying, “As the mortgage, though in the form of a deed absolute, does not give the mortgagee the right of possession, it must follow that defendant Moulton, or his grantee McCloud, being the owner of the legal title, cannot be required to pay the debt for which the security was given, or offer to pay it to enable him to defeat the action brought by the plaintiff to recover possession,” and reversed the judgment and ordered a new trial.