Kyle v. Hamilton

PER CURIAM. This is a suit for the foreclosure of a mortgage, of date October 4, 1894, given by the defendant to the plaintiff to secure the note of the former for the sum of $825, with interest, due October 21, 1896. The complaint is in .the usual form. The defense pleaded is, in effect, the alleged substitution for the old of a new mortgage, of date February 5, 1898, in the form of a deed purporting to convey to- the plaintiff the mortgaged premises, and an accompanying agreement for the payment of the debt in three installments—two of $100 each, on the first days of November, 1898 and 1899, and the balance October'1, 1900. On this issue the finding of the court was adverse to the defendant; [895]and judgment was accordingly entered for the foreclosure of the original mortgage. This finding, it is claimed, is not justified by the evidence; and.this contention, we think, must be sustained.

It is an undisputed fact in the case that on the fifth day of February, 1898, the defendant, at the instance of the plaintiff, executed to her the alleged deed, and that, at the same time, she signed a document as to terms of payment, as alleged, and for return of the deed on payment. This took place in the office of Henderson, the plaintiff’s agent, by whom the documents were drawn; and it is not disputed that the deed was delivered to the plaintiff, and has ever since been retained by her; but it is claimed the agreement was not delivered. But the evidence clearly shows the contrary; for not only is the delivery of the deed under the circumstances strong, if not conclusive, evidence that the agreement (which is part of the same contract) was also delivered, but it appears from the testimony of witnesses, without contradiction, that the agreement and the deed were together delivered to Henderson for the parties respectively entitled; that is to say, the deed for the plaintiff, and the agreement for the defendant. It appears also from the uncontradicted testimony of the defendant that about eight months after the transaction, the agreement was recognized and insisted on by the plaintiff: Pico v. Coleman, 47 Cal. 67. That the agreement was produced on the trial from the possession of the plaintiff is a fact of no importance. Her possession is accounted for by the statement of her agent, Henderson, made to defendant and his attorneys, that he had delivered it to her by mistake. Nor is the fact material that the agreement was not signed by the defendant. Ordinarily, the failure of one of the parties to sign an agreement containing obligations of both would be ground of inference that the writing was not intended as a contract of the party signing. But here the performance of the obligations of the defendant was fully secured by the deed executed by him to the plaintiff, and by the fact that the defeasance executed by the plaintiff bound her only on the terms stated; thus making the general contract complete. Nor is there any reason to suppose that the delivery was made by the plaintiff subject to the condition of its being signed by the defendant. The contrary is clearly apparent from the acts