Cline v. Robbins
Before: Haynes
Synopsis
Deed as Mortgage.—A Judgment Declared an Instrument in form a deed absolute to be a mortgage, and provided that it should be foreclosed, and that each party should pay his own costs and one-half of the jury fee. The jury fee had been paid by plaintiff, the mortgagor. The mortgagee appealed, whereupon the decree was modified by denying a foreclosure because not prayed for, and by directing that the decree fix a reasonable time within which the mortgagor should pay the balance due, and that, in default of such payment, the action should be dismissed. An “amended” judgment was then entered in the lower court, in accordance with the mandate, but it made no reference to costs or jury fees. Held, that the original judgment, in so far as it referred to the costs or jury fees, was not affected.
Deed as Mortgage.—A Judgment Declaring a Deed to be a Mortgage, and ordering a foreclosure of it, found the amount due the mortgagee, and directed that “the commissioner .... pay to plaintiff [the mortgagor] or his attorney, out of said proceeds [of the foreclosure sale], the sum of thirty-six dollars, jury fees, costs of this suit.” Held, that the cost should be deducted from the amount due the mortgagee, and not from the proceeds of the sale.
Deed as Mortgage.—A Judgment Declared a Deed á Mortgage, and ordered defendant, the grantee, to reconvey on payment of a certain sum, and directed that, unless the payment was made within a certain time, the action should be dismissed. Held, that it was no ground for dismissing the action that prior to a tender the grantor conveyed the property in fraud g£ creditors.
HAYNES, C. This appeal is from an order made after final judgment denying appellant’s motion to dismiss the action. Cline brought an action to have it adjudged that a certain instrument, in form a deed absolute, was in fact a mortgage, and for an accounting between himself and defendant Robbins, who was in possession of the property, and [177]receiving its rents and profits, and offering to pay any balance that might be found due from him to the defendant. The defendant denied that said instrument was a mortgage, and alleged that it was a deed absolute. Upon the hearing, the court found that said instrument was a mortgage, and that there was due to the defendant $583; and, as conclusions of law, that the mortgage should be foreclosed, that each party pay his own costs, and that each party pay one-half of the jury fee. That fee amounted to $72, and had been paid by the plaintiff. Judgment was thereupon entered foreclosing said mortgage, and ordering a sale of the mortgaged premises. Prom this judgment, defendant Bobbins appealed, making the points that the finding that said instrument was a mortgage was not justified by the evidence, and that the judgment foreclosing the mortgage was erroneous. This court sustained the finding that the instrument was a mortgage, but held that the action was to redeem from the mortgage, that a foreclosure was not sought by either party, and directing that the decree should fix a reasonable time within which the plaintiff must pay the balance found due, and that, in default of such payment within the time limited, the action should be dismissed, and ordering that the decree be modified accordingly: Cline v. Robbins, 112 Cal. 581, 586, 44 Pac. 1023. Upon the going down of the remittitur, what is styled an “amended judgment” was entered, in which it was recited that a former judgment had been entered foreclosing the mortgage, the appeal therefrom, and the judgment that the decree be modified, and then proceeded to decree “that the judgment heretofore entered be modified by striking out all that part thereof which forecloses the mortgage, and the same is hereby stricken out, and it is further adjudged and decreed that the plaintiff pay to the defendant the sum of $583, together with interest at seven per cent per annum from June 12, 1895, within forty days after the entry of this amended judgment; that, upon the payment of such sum, within said time, the mortgage be decreed to be satisfied by this court; and, upon payment thereof, the defendant is ordered to duly make, execute and deliver to the plaintiff a deed of conveyance of the said mortgaged premises, and, if within the said forty days the whole "of said money and interest shall not have been paid, then, upon motion of the defendant, this action shall be dismissed.” Within the time
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