Coleman v. Commins

Paterson, J. Ejectment. The land in controversy was conveyed by the defendant to the plaintiff on February 17, 1872. It is a portion of the Mexican grant commonly known as the Corte Madera. A survey of the rancho had been made, but was not confirmed until the first day of March, 1885. The purchase price to be paid by plaintiff to defendant was sixteen thousand dollars, seven thousand five hundred dollars of which was paid at the time the deed passed, and plaintiff gave to defendant a. mortgage for the balance,—eight thousand five hundred dollars. The mortgage, which was executed by both parties, provided that the money should be payable "upon final confirmation of the survey, but that in no event should the money be due before November 1, 1872.” It further provided that Commins should remain in possession until confirmation, in lieu of interest upon the eight thousand five hundred dollars secured. On December 18,1872, Commins received from Coleman the sum of seven hundred dollars, and, to secure its repayment, if the survey should not be confirmed, executed to the latter an assignment of the mortgage “by way of mortgage.” On May 12, 1873, Coleman made another [551]advance of $250, and received from Commins an agreement that the money was taken on the same terms and conditions as those named in the assignment of the mortgage, “except that the interest on this sum shall be reckoned only from the present date.” On January 5, 1874, Coleman advanced the further sum of five hundred dollars, and executed an instrument similar to the one last referred to. It provided, however, that the rate of interest should “ be two per cent per month from and after the fifth day of January, 1874, payable monthly in gold coin, and if not paid at the end of each month, shall be added to and become part of the principal, and draw the same rate of interest as the principal sum.”

No part of the principal sums thus advanced, or interest thereon, was ever paid by defendant. At the time of final confirmation of the survey, March 1, 1885, the principal and interest of the sums advanced by Coleman amounted to more than eight thousand five hundred dollars,—the amount named in the mortgage of plaintiff to defendant.

This action was commenced on September 11, 1885. The complaint contains the usual allegations in ejectment. The defendant filed a cross-complaint, claiming that the original mortgage had not been paid, and asking for a foreclosure and sale, and for a decree that he might be permitted to retain possession of the property until the mortgage was satisfied. The plaintiff filed an answer thereto, claiming that the principal and interest of his loans to Commins amounted to more than the money due upon his mortgage to Commins, and that this fact entitled him, under the terms of the assignment, to the possession of the land; and, as a counterclaim, that he was entitled to $1,781, the excess of the amount of principal and interest advanced to defendant over the eight thousand five hundred dollars, amount of the mortgage debt.