Rand v. Hastings

RHODES, J. These are cross-appeals in the same case. Hastings, being the owner of block No. 300 in the town of Vallejo, bargained and sold the same to one William Likens, and agreed to convey the same to him, on his paying the purchase money. On the 4th of March, 1859, Likens, by an agreement in writing, undertook to convey to the plaintiff lots Nos. 7 and 8, in said block, upon his paying to Likens sixteen hundred dollars, and interest at two per cent per month within twelve months from date, which amount the plaintiff agreed to pay. The plaintiff immediately took possession of the lots and proceeded to erect thereon a hotel. On the 9th of April, 1860, Likens conveyed those lots to Hastings, the purchase money payable by the plaintiff to'Likens [308]being then unpaid; and on the 13th of June following, the plaintiff being indebted for the amount of the said purchase money, and being also indebted to divers persons in sums which with the said purchase money, and a small sum then advanced by Hastings, amounted to six thousand dollars — • Hastings executed tó the plaintiff the instrument which is designated by the parties as “Exhibit A.” The matter of the greatest importance in the case is to determine the character of this instrument — the plaintiff contending that it is a mortgage by the plaintiff to Hastings, and the defendant insisting that, at the best, it is only a contract of sale by Hastings to the plaintiff.

It is a conclusive answer to the position that it is the mortgage of the plaintiff to say that the plaintiff did not execute the instrument, nor did he at the time of the making of the instrument or at any other time convey or transfer by way of mortgage or otherwise any right, title or interest in the premises to Hastings. If this instrument is the mortgage of the plaintiff, it is the only instance to be found in the annals of the courts in which the alleged mortgage was executed by the mortgagee alone and delivered by him to the mortgagor.

The case having been, disposed of upon the erroneous theory that “Exhibit A” was a mortgage, we shall not enter into an extended discussion of the points presented on appeal. The record is not in such .a condition, that we can determine whether the contract contained in “Exhibit A” can be enforced against Hastings or the other defendants. It appears on its face to be a contract, on the part of Hastings, to convey the premises to the plaintiff upon his making payment at a certain time of six thousand dollars, and the taxes, insurance, etc., with interest on the amount at a specified rate; bat because of the absence from the case of facts necessary to show a contract on the part of the plaintiff to purchase the premises from Hastings and pay him the purchase money, we cannot say whether there was or was not such mutuality in the undertaking of each party as is essential to enable him ■to enforce the performance against the other.