Pico v. Gallardo

Nothing remained in the defendants but the right of action for redemption. (Hughes v. Davis, 40 Cal. 120; Higgins v. Higgins, 46 Ibid. 264.)

Upon the defendants’ own theory, therefore, there is still due from them seven hundred dollars, which amount they never tendered or offered to pay; and although such offer is made in their answer, yet in fact they have not paid it, and the judgment does not require them to pay it, but on the contrary, awards costs to defendants.

V- E. and F. H. Howard, for the Respondents.

The Court finds that the deed of defendants was a mortgage. Once a mortgage, always a mortgage, as between the parties and all subsequent vendees, with notice, which is found in this case. Hughes v. Dams, and Higgins v. Higgins do not affect this principle, and have no application to the case. (Hill on Mort. pp. 85-88.) Possession was sufficient notice to Pico.

By the Court, McKinstry, J.: On the 8th day of August, 1874, the legal title to the premises in controversy was in Tomasa Badilla. She deraigned from Jesus Peralta, who acquired his rights under deeds from the [208]defendant, and his wife, the intervener, absolute in form, but intended as mortgages to secure the payment of money borrowed by defendant.

On the said 8th day of August, Tomasa Padilla executed a deed of conveyance of the premises, without consideration, to her son, Manuel de Hablar.

Tomasa sold the land and premises to the plaintiff on the 17th ■day of November, 1874, for the sum of two thousand five hundred dollars, which sum the plaintiff paid to said Tomasa, in gold coin; and on the same day, by her direction, the said Hablar executed a sufficient deed of conveyance to plaintiff.

There is no finding that plaintiff had knowledge or notice that the deeds executed by defendant and intervenor, and mentioned in the findings, were intended as mortgages.

The Court below found that at the date of the sale and conveyance to plaintiff, the defendants were in possession of the demanded premises. Such possession was not notice of ■ the defendants’ equity, but only evidence tending to prove notice. (Fair v. Stevenot, 29 Cal. 486.)

If, however, the District Court had found the fact of notice adversely to the plaintiff, he should have recovered in the action, in the absence of allegations in the answer setting forth the equities of the defendants, with an offer to pay the amount ■of the mortgage lien, and a prayer that the conveyance be declared a mortgage. (Hughes v. Dams, 40 Cal. 117.)