Hamilton v. Jones

Appeal by defendant J. S. Carmichael, from the judgment, of the Superior Court of the County of Placer. Myres, J.

Action of foreclosure of mortgage. The action was brought against the defendants Willis Jones and Michael Dougherty, as the mortgagors, and against J. S. Carmichael and others, as claimants of some interest, subject to the plaintiff’s mortgage—the defendant Carmichael being a junior mortgagee. The indenture between the parties plaintiff and defendants Jones and Dougherty, as it appears in the transcript and as a part of the complaint, is as follows:

This indenture, made this first day of February, A. D. 1876, by and between Jo Hamilton of the first part, and Willis Jones and Michael Dougherty of the second part, both of the County of Placer and State of California, witnesseth that, whereas, heretofore, A. Bruce, of Placer County, California, has held the property hereinafter described in trust for the payment of. certain sums of money due from the said Willis Jones and Michael Dougherty, by deeds absolute on their face, but which were only intended as mortgages to secure the money; and whereas, the said Jo Hamilton has this day paid to the said A. Bruce all the moneys owing to him by the said Willis Jones and Michael Dougherty, to wit, the sum of twenty-six thousand ($26,000) dollars, in gold coin; and whereas, the said Willis Jones was also indebted to the said Jo Hamilton in the sum of one thousand seven hundred and twenty-seven dollars and seventy-eight cents ($1,727.78) in gold coin, which he is desirous of securing to him; and whereas, on the payment to him by the said Jo Hamilton of the said sum of twenty-six thousand ($26,000) dollars, owing to him by the said Willis Jones and Michael Dougherty, which is done before the en-sealing of these presents, the said A. Bruce has, with the full consent of the said Willis Jones and Michael Dougherty, deeded all of the said property to the said Jo Hamilton, by deed of conveyance duly executed to him this day.

How, in consideration of the said sums so paid by the said Jo Hamilton, and the said sums owing him by the said Willis Jones, the said Willis Jones and Michael Dougherty hereby acknowledge themselves to be indebted to the said Jo Hamilton in the sum of twenty-seven thousand seven hundred and twenty-seven dollars and seventy-eight cents ($27,727.78); that is to say: Jo Hamilton, who holds the deed absolute of the said property, holds it subject to the right of the said Willis Jones and Michael Dougherty to repurchase the said property at any time within the period of one year and six months from this date, upon paying to the said Jo Hamilton the said sum of twenty-seven thousand seven hundred and twenty-seven dollars and seventy-eight cents ($27,727.78), together with one and one half per cent, per month by way of interest. When the same is fully paid, then said Jo Hamilton shall re-deed all of the said property to them or their assigns, or such part as shall remain after such money shall be paid. The said payments shall be made as follows: First, as often as any of the said property may be sold (if any be sold), the proceeds shall go first to pay the said Jo Hamilton all the interest due him to that date on the said sum of twenty-seven thousand seven hundred and twenty-seven dollars and seventy-eight cents ($27,727.78). Second, to pay so much of the principal as shall remain, and as the parties herein now have other dealings and transactions together, which do not have any concern or connection with this contract, it is hereby stipulated and expressly agreed that nothing shall be considered or treated as a payment on this contract by the said Willis Jones and Michael Dougherty from any source whatever, unless the same is at the time of such payment indorsed plainly upon the copy of this contract kept by the said Willis Jones and Michael Dougherty, and signed by the said Jo Hamilton or his assigns as a credit on said contract. The said Willis Jones and Michael Dougherty shall have the full control and management of all of the said property and the revenues thereof, and from time to time as the said revenues arising from the said property shall exceed the expenses of working and running the same, such net proceeds shall be paid by them to the said Jo Hamilton, and shall be applied first to the payment of the interest due at the time of the payment, and secondly to pay so much of the said principal sum as shall remain.