Todd v. Todd

SLOSS, J.

The parties are husband and wife. On June 5, 1895, the plaintiff executed an instrument, in form a grant, bargain, and sale deed, purporting to convey to the defendant a lot in the Victor Heights Tract, in the city of Los Angeles, and twelve and one-half other lots situate in a tract near said city. The complaint in this action alleges that the instrument so executed, although absolute in form, was intended by the parties to be a mortgage to secure the payment of one thousand six hundred dollars, loaned by defendant to plaintiff. The agreement of the parties, as the complaint avers, was that said sum of one thousand six hundred dollars was to be repaid on June 5, 1896, with interest at the rate of seven per cent per annum, payable semi-annually, and if not so paid to be compounded. It is further alleged that on March 1,1898, the defendant, with plaintiff’s consent, sold and conveyed the lot in the Victor Heights Tract to one Deakin for the consideration of one thousand dollars, which was retained by defendant as a payment on the indebtedness above mentioned; that no other payments have been made on said indebtedness. The complaint sets up an offer by plaintiff to pay the balance due, a demand for reconveyance, the defendant’s refusal to reconvey, and plaintiff’s continued ability and willingness to pay upon receiving such reconveyance. The prayer is for an accounting of the amount due; that the instrument be declared a mortgage, and that defendant be required to reconvey or release upon payment of the amount adjudged to be due.

The answer denies the making of any loan, or that the instrument in question was intended to be a mortgage. The defendant alleges that she purchased the property of plaintiff for one thousand six hundred dollars, and that the deed executed to her was an absolute conveyance, as it purported to be.

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She avers that the Victor Heights lot, sold by her, was her separate property. She also sets up the payment by her of certain taxes levied upon the property.

The findings were in favor of the plaintiff on the issues regarding the making of the loan and the purpose with which the deed was delivered and accepted. The court found that the defendant sold the Victor Heights lot for one thousand dollars, and retained said sum as a payment on the indebtedness. It is found that the unpaid balance of the indebtedness, with interest, amounts to $2,243.67, and that the defendant paid taxes which, with interest, amount to $196.75. The total sum due from plaintiff to defendant is $2,440.42, and the judgment decrees that on payment of this sum, the defendant execute and deliver to plaintiff a satisfaction of the instrument of June 5, 1895, which is adjudged to be a mortgage.