Healy v. O'Brien

Ross, J. The action is ejectment, based on a deed from the owners of the property, absolute in form. The answer of the defendants, who are husband and wife, denies the alleged ownership of the plaintiff, and then sets up that although absolute [519]in form, the deed was given only as security for certain moneys, to be and which were advanced by the plaintiff to the defendant, Matthias O’Brien; states the terms of the agreement under which the moneys were so advanced, alleges the willingness and readiness of the defendants to carry out the contract, and prays, among other things, that the deed be decreed a mortgage, and for such other and further relief as to the court seems proper. After trial, the court below found that the deed was given as security only, for certain moneys to be advanced to and for the use and benefit of the defendant, and which moneys were so advanced by the plaintiff, and amounted to the sum of three thousand dollars, which sum is, and has been, according to the findings, due and owing from defendants to plaintiff, with interest thereon at the rate of ten per cent, per annum,from the first day of February, 1879. The decree of the court below is to the effect that upon the payment to the plaintiff by the defendants of the said sum of money and interest, within three months after the entry of the decree, plaintiff execute to defendants a good and sufficient deed to the property, and that in the event defendants neglect or refuse to make the payment within the time designated, “ then and in that event the affirmative relief demanded by said defendants be denied, and that their bill asking for the same be dismissed.”

Neither party is satisfied with the decree as entered, and it is quite clear that it is not the proper decree. For the plaintiff, who is the respondent here, it is claimed that the decree should be modified, by directing that it provide that on failure of the defendants to pay the money within the time specified, a writ of possession issue to put the plaintiff in possession of the property. But a little reflection will show that position to be untenable. If the deed had been what it purported to be, a deed absolute from the owners of the property, the legal title would, of course, have passed to the plaintiff, and the judgment would have been that the plaintiff recover possession of the property from the defendants. But when the court found that the deed was given, only as security for money loaned, it found in effect that it was but a mortgage, and that it did not pass the legal title to the plaintiff. (Taylor v. McLain, 64 Cal. 513.) If, therefore, defendants had rested only on their denial of the plaintiff’s