Bull v. Strong

McFarland, J. This action was originally commenced by Alpheus Bull, now deceased, against John T. Coe, administrator of Charles L. Strong, deceased, and his widow, Hattie W. Strong, to foreclose a mortgage executed to said Bull by said Charles and Hattie Strong upon land admitted to have [28]been the separate property of said Hattie. Judgment was first rendered in favor of the defendants; and upon appeal to this court the judgment was reversed, and a new trial ordered. (See Bull v. Coe, 77 Cal. 54; 11 Am. St. Rep. 235.) After the return of the remittitur the pleadings were amended several times; and the action was prosecuted by the administrators of Alpheus Bull against Hattie W. Strong, alone — it having been dismissed by the plaintiffs as to the administrator of said Charles L. Strong. Judgment was again rendered in favor of the defendant, Hattie W. Strong, and plaintiff appeals from the judgment and from an order denying a new trial.

It is averred in the complaint that on October 31, 1882, the said Charles L. Strong, since deceased, arid his wife, the said Hattie W. Strong, duly executed to said Bull, deceased, a deed which conveyed to said Bull the land in contest, which provided, however, that the said land “is herein made over to the party of the second part in trust, the conditions of which are stated in a separate instrument in the hands of the parties of the first part.”

It is averred in the complaint that this deed was given and intended as a mortgage to secure certain moneys advanced or to be advanced by said Bull to said Charles L. Strong; that this deed was delivered the next day, November 1st, by said Charles to said Bull; and that at the time of its delivery the said Bull executed and delivered to said Charles and Hattie Strong an agreement in writing dated November 1, 1882, and which is called generally the “ defeasance.” This defeasance refers to said deed of October 31st, and declares that it was given in trust to secure the payment, with interest at nine per cent, of all moneys advanced or to be advanced by Bull in payment of said Charles L. Strong’s one-third interest in the Belmont mine, as well as for the expense of working said mine—the amount not to exceed eleven thousand dollars. It also provided that the profits of said mine should be applied in payment of the money thus advanced; and that if such profits should not be sufficient to pay said advances, then said Bull should have the right to sell such portion of the laud as should be necessary to meet the deficiency. There is a rather obscure provision about “twelve months from the date of this instrument,” and there are some