Cowing v. Rogers , 34 Cal. 648 ( 1868 )

By the Court, Rhodes, J. :

The appellant presents two points: first—that the judgment is erroneous in requiring the redemption money to be paid in gold coin; and second—that it is also erroneous in requiring the plaintiff to redeem within a limited time, or his equity of redemption be forever barred.

In his motion for a new trial the jilaintiff has not specified wherein the evidence was insufficient to justify or support the findings. After the findings were filed he filed his objections thereto, in which he specified several of the findings as unsupported by the evidence. This is not the office of exceptions to the findings, under the Act of 1861, or of the amendment of 1865-6 to section one hundred and eighty of the Practice Act. A party, according to these provisions, may object for the want of findings, or on the ground that there is no finding as to a particular fact in issue, and if the defect is not remedied, may take his exception. But when he thinks any finding is contrary to or unsupported by the evidence, he must make that a ground of his motion for a new trial. He cannot avail himself of the alleged error in any other manner. This has been so often repeated that a citation of authorities is useless.

The fact's as stated in the findings must be accepted on this appeal as the facts in the case, as the statement does not specify the particulars in which the evidence is insufficient to justify the finding. The finding “ that it was tacitly understood by and between said plaintiff and wife and said Rogers, that said conveyance was intended to secure the repayment to said Rogers of the sums so paid and advanced to him, with interest thereon at the rate of one and one quarter per centum per month, and not as an absolute conveyance of said premises; and that upon such payment in gold coin of the United States, said Rogers would reconvey said premises to the plaintiff or the plaintiff’s wife,” requires that the judgment should order that the plaintiff pay in gold coin the amount found due from him; for the plaintiff"is not entitled to redeem except upon compliance with the agreement or understanding under which the deed was executed. The construction of the Specific Contract Act is not involved in this matter. The question is whether a party who has executed a deed to secure the performance of his agreement, and who seeks the aid of a Court of equity to have the deed declared a mortgage and to be permitted to redeem and have a reconveyance of the premises, ought to be held to a full compliance with the terms of the agreement as a condition precedent to the reconveyance. The question admits of but one answer. Had the condition been to do any other thing than to pay money—as to deliver stocks or bank bills, to execute a conveyance of other property, or the like—no doubt would be expressed by any one that the condition must be performed before a reconveyance could be required. The applicability of the maxim that “ he who seeks equity must do equity,” is very manifest.

Ho valid objection can be taken-to the judgment in requiring the plaintiff to pay the redemption money within forty-five days after the entry of the decree. An action of this character, which is substantially a bill to redeem, is not governed by the provisions of the Practice Act relating to foreclosure of mortgages. The plaintiff, in an action to redeem, “professes that his money is ready,” and offers to pay whatever sum is due upon the mortgage; and, as his offer is to pay forthwith, he cannot complain when the Court limits him to a reasonable time. Forty-five days was ample time for a party professing a readiness to pay.

The plaintiff’s position, as we understand it, is that when the Court found that the transaction amounted to a mortgage, he was entitled to suspend all action, and that the defendant, if he wanted his money, must foreclose his mortgage: and he says that, the Court having declared the deed a mortgage, all the incidents of a mortgage must follow. ZESTo precedent is cited of an action instituted for the sole purpose of having an absolute deed declared a mortgage, if or is that the character of this case. This is an action to redeem the mortgage.

If the position of the plaintiff is correct, that notwithstanding this action and a judgment in his favor, declaring the deed to have been intended as a mortgage, it is necessary for the grantee to foreclose the mortgage in order to realize the money intended to be secured, then the present suit was essentially idle and useless. For the Court, in declaring the deed a mortgage, does not make a mortgage out of materials in hand, but only determines what the transaction in fact was, and gives effect to the agreement by permitting a redemption. Whether the plaintiff could have omitted all action on his part, and awaited the operation of the Statute of Limitations in discharging the lien, or whether the doctrine that the right to redeem and the right to foreclose are mutual and reciprocal, can have such an operation in any case under the laws of this State as to require action on the part of the grantor, it is unnecessary to inquire; but it is very clear that when he does sue, offering to redeem and praying that the premises may be reconveyed to him, the Court is authorized, if the facts warrant it, to declare that the deed, absolute in its terms, was intended as a mortgage, and to prescribe the terms of redemption and reconveyance. Such judgment is as binding upon the grantor in respect to the redemption, as upon the grantee in respect to the character of the instrument and the reconveyance. It is one of the incidents of a mortgage, that where the mortgagor seeks the aid of a Court of equity in effecting a redemption, the Court may prescribe the terms of the redemption.

The Court having authority to designate a limited time within which the redemption money must be paid, what penalty may the Court impose for a default ?

In this case it was ordered that if default be made in the payment of the redemption money, the plaintiff should be barred and foreclosed of all equity of redemption in the premises. The usual judgment, if such default be made, is that the bill be dismissed; and this, we think, is the proper judgment. (See Perrine v. Dunn, 4 John. Ch. 141; The Bishop of Winchester v. Paine, 11 Ves. 199; Shannon v. Speers, 2 A. K. Marsh. 698; 2 Barb. Ch. Pr. 199.)

This judgment—that the bill be dismissed—as we understand the authorities, is not made at the time the deed is declared a mortgage, and the grantor is permitted to redeem, but is made after a default in paying the redemption money, and upon the motion of the opposite party.

It is said in 2 Barb. Ch. Pr. 200, that the “ decree of dismissal may be moved for, of course, after the Master’s report has been confirmed, upon an affidavit that the time has expired and the money has not been paid.”

The defendants contend that the error in the judgment, in ordering that the equity of redemption be barred and foreclosed, if default be made in the payment of the redemption money, is immaterial and without injury to the plaintiff, as the dismissal of the bill, because of such default, amounts to a bar of the equity of redemption. But it is neither necessary nor proper to consider the effect of such a judgment under our system of practice and the laws governing mortgages in this State in anticipation of the rendition of the judgment.

Cause remanded, with directions to the Court below to modify the judgment in accordance with this opinion.