Citation Numbers: 11 Cal. 12
Judges: Baldwin
Filed Date: 7/1/1858
Status: Precedential
Modified Date: 1/12/2023
Terry C. J., and Field, J., concurring.
We do not see any error in this decree to the prejudice of the defendants. By this arrangement, to say the least of it, the plaintiffs were made the pledgees or bailees of Howard, in respect to this debt assigned, and were bound to take the proper care of the subject of the Court. They were not bound to suffer the debt to be barred, or the chances of the property going to waste, before collecting the debt or foreclosing the mortgage, as might be the case if proceedings were delayed until the question of their liability on the bond was settled.
It is not necessary to decide whether, as this assignment was in writing, it would be admissible for Howard, or those claiming under him, to show by parol that what imparted an absolute sale or transfer was really a sale only on condition.
There was no error in striking out the answer of the defendants, to their prejudice, as it merely set up the facts upon which we have already passed, and some others not affecting the merits.
Decree affirmed.