Gay v. Hamilton (1867) · DecisionDepot

Gay v. Hamilton

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 15, 1867Published

Before: Sandebson

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Holding. The court held that parol evidence is admissible to prove that a transaction appearing as an absolute sale was intended as a mortgage, and that a judgment for money received in a fiduciary capacity may be payable in coin.

Issues

Whether parol evidence is admissible to show that an absolute conveyance was intended as a mortgage.
Whether a judgment for money received in a fiduciary capacity may be made payable in coin.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“it is well settled in this State that what appears upon the face of the papers to have been an absolute sale and conveyance may be shown by parol evidence to have been intended as a mortgage.”

“The money having been received in a fiduciary capacity by the defendant, it was not error to give the plaintiff' a judgment payable in coin.”

Synopsis

Parol Evidence as to Mortgage.—A deed which appears upon its face to have been an absolute conveyance, may be shown by parol evidence to have been intended as a mortgage.

Idem.—If a deed, absolute on its face, is given for a loan of money, and intended as a mortgage, and a defeasance is at the same time and as a part of the transaction given by the grantee to the grantor, it is doubtful whether parol evidence is needed to show the deed a mortgage.

Idem.—If a deed absolute on its face is given, and at the same time a defeasance is executed, parol evidence is admissible to show them parts of the same transaction.

G-old Coin Judgment.—If one having a deed, absolute on its face, but intended as a, mortgage, goes into possession, and receives gold coin for rent, and sells the property and receives gold coin therefor, the money is received in a fiduciary capacity, and may be recovered in gold coin.

By the Court, Sandebson, J.: It may well be doubted if the testimony of Judge Sawyer was needed for the purpose of explaining the true character of the transaction; but be that as it may, it is well settled in this State that what appears upon the face of the papers to have been an absolute sale and conveyance may be shown by parol evidence to have been intended as a mortgage. (Pierce v. Robinson, 13 Cal. 116; Johnson v. Sherman, 15 Cal. 291; Cunningham v. Hawkins, 27 Cal. 603; Hopper v. Jones, 29 Cal. 19.) This case is not distinguishable from those cited. It was competent, if necessary, to prove by parol that the deed and agreement were parts of the same transaction, and that the transaction, as a whole, amounted to and was intended to be a mortgage.

The money having been received in a fiduciary capacity by the defendant, it was not error to give the plaintiff' a judgment payable in coin.

Judgment and order affirmed.

Gay v. Hamilton

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