Newhall v. Hatch

HARRISON, J.

—The plaintiff loaned to the defendant Hatch the sum of fifty thousand dollars, November 10, 1891, for which Hatch, on that day, executed to him his promissory note, payable one day after its date. November 3, 1892, as security for the payment of four thousand dollars of said indebtedness, Hatch executed to the plaintiff a conveyance of certain lands in Alameda County, which was recorded in the office of the county recorder on the following day. This deed, though absolute in form, was intended as a mortgage, and on November 4, 1892, the plaintiff executed and delivered to Hatch a defeasance, which, after reciting the execution of the deed, and the property conveyed thereby, contained the following: “And whereas, said deed is absolute in form, yet in fact is intended as security for the payment of the sum of four thousand dollars loaned by said Newhall to said A. T. Hatch, now this defeasance witnesseth, That the said George A. New-hall, for himself, and for his heirs, executors, administrators, and assigns, hereby binds himself and agrees to reconvey the hereinabove mentioned and described property unto the said A. T. Hatch, his heirs, executors, administrators, and assigns, at any time, upon the payment to him of said sum of four thousand dollars and his demand for a deed to said property.”

This defeasance was not recorded. September 20, 1895, Hatch renewed his note of November 10, 1891, by making a new promissory note of that date for the same amount, payable one day after its date. The four thousand dollars secured by the mortgage of November 3, 1892, was a portion of the fifty

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thousand dollars agreed to be paid by this last promissory note, and no part of it, or of any interest thereon, has yet been paid.

April 21, 1896, a judgment was docketed in the office of the clerk of the superior court for Alameda County, in favor of Sherman, Clay & Co., a corporation,—the appellant herein,— and against the defendant Hatch, for the sum of $47,792, and thereby became a lien upon all the real property of Hatch within that county. Under an execution issued upon this judgment, June 22, 1897, the sheriff levied upon and sold to said Sherman, Clay & Co. the lands described in the conveyance of November 3, 1892, from Hatch to the plaintiff, and on July 28, 1898, issued to the purchaser a deed therefor.