Cohen v. Mitchell

BELCHER, C. C. On the eleventh day of November, 1873, Cohen owned one-third and Mitchell two-thirds of the Bonny placer mine. Cohen had become indebted to Mitchell in the sum of five thousand dollars, and on that day, for the expressed consideration of that sum of money, conveyed to him his one-third interest by a deed absolute in form. The deed was intended to be only a mortgage, as is clearly shown by the paper executed by Mitchell on the 24th of January, 1874, wherein he declares that he holds the title to the undivided third of the mine in trust for Cohen, and agrees to reconvey [630]it to him upon payment of his indebtedness of five thousand dollars, with interest thereon from the eleventh day of November, 1873, until paid, at the rate of one per cent per month, the payment to be made upon demand; and, if not so made, that judgment should be obtained for the amount found due, and three per cent counsel fees, with costs of suit for foreclosure, should be includéd in the judgment. Upon this paper Mitchell made an indorsement, some time in the summer of 1875, as follows: “I hereby agree to extend the within document for one year, or till the claim is sold.” Mitchell died on the eighth day of February, 1882, no reconveyance having been made to Cohen, and this action was commenced on the eighteenth day of April, 1882. In the complaint it is alleged that after the conveyance of November 11, 1873, Mitchell held the legal title to the one-third interest in the mine, in trust for the plaintiff, and was to reconvey it to the plaintiff upon payment by him to Mitchell of the sum of five thousand dollars, with interest thereon at the rate of one per cent per month; that he (plaintiff) had before Mitchell’s death paid to him the full amount of the five thousand dollars and interest, and was entitled to a reconveyance, but by his consent Mitchell continued to hold the legal title in trust for him, and so held it at the time of his death. The prayer is for a judgment that plaintiff is the owner of a one-third interest in the mine, and that the defendants be required to execute to him a good1 and sufficient deed therefor. The defendants, by their answer, deny that any part of the five thousand dollars, or the interest thereon, was ever paid by Cohen to Mitchell, and they allege that his cause of action is barred by the provisions of section 346 of the Code of Civil Procedure. The court below found that no part of the debt had ever been paid, and that since the 11th of July, 1876, and until the eighth day of February, 1882, Mitchell had been in the sole and exclusive possession and ownership of the Bonny mine, holding and claiming the same during all that time adversely to Cohen.