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given to secure a note of $7,120 and interest, a trial amendment alleging that one of the deeds was given, not only as further security for such indebtedness, but also to secure a payment to the grantee of a further sum of $1,500 alleged to have been paid by the grantee to C., did not in any degree detract from the effect of complainants' original claim that the property was conveyed to the grantee to hold as security for the $7,120 note and interest.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, § 567.]

3. ACTION-JOINDER.

Where property belonging to W., and other property belonging to another, from whom plaintiff held an absolute power of attorney, was conveyed by separate absolute deeds to secure a single indebtedness from W. to the grantee, the latter not being compelled to accept a partial payment of his claim or to make a partial surrender of his securities, a single suit was maintainable to have all the conveyances declared to operate as mortgages, and for redemption.

4. MORTGAGES-ACTION TO REDEEM-PARTIES. Where plaintiff and another, from whom he held an absolute power of attorney, conveyed property owned by them in severalty, by absolute deeds to secure plaintiff's debt to the grantee, plaintiff and his principal were entitled to join as parties plaintiff in a suit to have such conveyances declared mortgages and for redemption, notwithstanding Code Civ. Proc. § 347, providing that if there is more than one mortgagor or person claiming under him, some of whom are not entitled to maintain an action to redeem, any one of them who is entitled to maintain such action may redeem a divided or undivided part of the mortgaged premises, according to his interest, etc.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages. §§ 1825-1832.]

5. SAME-REVIEW-PRESUMPTION-EVIDENCE.

The rule that a deed absolute in form is presumed to be an absolute conveyance does not require that the evidence in the record, on appeal from a decree declaring certain absolute conveyances to be mortgages, must be entirely plain and convincing to the appellate court in order that the decree should be sustained. 6. ESCROWS-AGREEMENTS-MEMORANDUM.

An unsigned memorandum in the handwriting of the grantee, found among his personal effects after his death, wrapped about a quitclaim deed of certain property from himself and his wife to his grantor, and apparently designed to accompany a deposit of the deed in escrow and to serve as a memorandum of the terms and conditions on which it was to be delivered, which memorandum had never been brought to the attention of the grantees in the quitclaim deed and to which no assent had been given was ineffective as a written contract_establishing the terms on which the property had been conveyed to decedent and was to be held by him.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Escrows, §§ 1-3.]

7. WITNESSES-TRANSACTION WITH DECEASED PERSON-STATUTES-CONSTRUCTION.

Code Civ. Proc. § 1880, provides that parties or assignors of parties to an action or proceeding against an executor or administrator on a claim or demand against the estate of a deceased person, cannot testify as to any fact occurring before the death of such deceased person. Held, that such section related only to actions on such claims against the decedent as might have been enforced against him in his lifetime by a personal action for the recovery of money, and on which a money judgment could have been recovered, and did not apply to a suit against a decedent's executrix to have

certain absolute conveyances to him declared to operate as mortgages, and for a redemption. [Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 572.]

8. MORTGAGES MORTGAGEE IN POSSESSIONADVERSE POSSESSION.

Code Civ. Proc. § 346, declares that an action to redeem a mortgage of real property may be brought against the mortgagee in possession at any time unless the mortgagee has maintained adverse possession of the mortgaged premises for five years after breach of condition. Held, that, so long as a mortgagee in possession held by the consent of the mortgagor and by virtue of his agreement to apply the rents and profits to the indebtedness, his holding was not adverse. 9. SAME-DUTIES OF MORTGAGEE.

Where a mortgagee was let into possession of certain mining claims under the mortgage, and it was left optional with him to work the claims or not, and to make leases of portions thereof or not as he saw fit, he was bound, independent of agreement, to pay the expenses of the operation of the claims, and to apply any net profits to the mortgage indebtedness.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, $$ 498-502.]

10. TENDER-EFFECT-INTEREST.

Civ. Code, § 1504, declares that an offer of payment or other performance duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest, and section 1498 declares that when the debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his offer to depend on the due preformance of such conditions. Held, that where a grantor was entitled to a reconveyance of the property on payment of the debt to secure which it had been conveyed, a tender of the amount he claimed to be due "and any further sum of money due" conditioned on the delivery of a reconveyance, was effective to stop the running of interest. 11. MORTGAGES-ACCOUNTING.

Certain mining claims were conveyed to defendant's testator by a deed which was in fact a mortgage, under an agreement that he might operate the mines, paying the expenses from the proceeds and crediting the balance on the mortgage debt. He in fact contracted with M. to superintend and manage the mine under an agreement by which M. was required to look solely to the mining property for money expended and his salary. Held, that the amount due M. from the mine was no part of the indebtedness due testator from the mortgagors. though on redemption they might be required to accept the mining property charged with such claim for services.

12. EXECUTORS CONVEYANCES OF LAND

STATUTES-APPLICATION.

Code Civ. Proc. § 1597, provides that when a person, who is bound by written contract to convey real estate, dies before making the conveyance, and in all cases when such decedent if living might be compelled to make such conveyance, the court may make a decree authorizing and directing his executor to convey the property to the person entitled thereto. Held, that such section was applicable only where deceased was bound by a written contract to convey, and had no reference to a suit to compel an executrix to reconvey certain property conveyed to her testator by absolute deeds, which were in fact mortgages.

13. EVIDENCE-LETTERS.

In a suit against an executrix to compel reconveyance of property conveyed to her testator by deeds absolute in form which were in fact mortgages, letters passing between defendant's testator and the grantor and answers thereto, relative to their respective rights in the property, were admissible as admissions.

14. MORTGAGES MORTGAGEE IN POSSESSION-SERVICES.

A mortgagee in possession is not entitled to compensation for personal services on account of the mortgaged property.

15. TRIAL-OPINION-FINDINGS-COSTS.

Where the written opinion of the trial court provided that each party should pay his own costs, but the findings and decision recited that plaintiffs were entitled to recover against the defendant a judgment for costs in the action, etc., the findings and decision controlled the written opinion, and entitled plaintiffs to a judgment for costs.

16. MORTGAGES-REDEMPTION-AMOUNT DUE

INTEREST-TENDER.

Where, in a suit to have certain absolute conveyances declared to operate as mortgages only and for redemption, defendant denied plaintiff's claim, but was defeated, she was entitled to interest on the amount found due her less the costs awarded plaintiffs, from the date the judg ment became final to such, time as plaintiffs inder the judgment tendered her the amount due, or, in the event no tender was made, until foreclosure sale, ordered in that event, had been made.

Department 1. Appeal from Superior Court, Nevada County; F. T. Nilson, Judge.

Action by W. P. Wadleigh and others against Josephine A. Phelps, as executrix of the will of T. G. Phelps, deceased. From a judgment in favor of plaintiffs, and from an order denying defendant's motion for a new trial, she appeals. Affirmed.

See 82 Pac. 200.

Geo. F. Witter, for appellant. C. W. Cross, for respondents.

ANGELLOTTI, J. This is an appeal from a judgment given in favor of plaintiffs in an action brought to have certain deeds of conveyance, absolute in form, decreed to be in fact only mortgages, the amount due thereon ascertained, and conveyances of the property therein described ordered executed upon the payment of the amount adjudged due. Other appeals taken by defendant from certain orders made after judgment, including an order denying her motion for a new trial, have heretofore been dismissed, and still other appeals shown by the transcript have been held unnecessary and fruitless, in that they were from nonappealable orders reviewable on the appeal from the judgment. Wadleigh et al. v. Phelps, 147 Cal. 135, 81 Pac. 418. The case made by the complaint as originally first amended, and upon which the case went to trial and was partially tried, was substantially as follows: On November 15, 1889, defendant's testator, T. G. Phelps, loaned $5,500 to plaintiff Wadleigh, who gave Phelps his note for the amount, payable six months after date, and bearing 9 per cent. interest. At the same time, as security for the payment thereof, Wadleigh and his wife gave Phelps a deed of conveyance of certain lots in San Francisco, Cal., and other property in the state of Washington. On August 1, 1890, Phelps loaned Wadleigh $1,000 more, which, with the $5,500 and interest, made

his indebtedness $6,830, for which amount a new note, bearing interest at 9 per cent. per annum, and payable six months after date was given, and it was agreed that Phelps should continue to hold as security the title to the lands previously conveyed. On April 23, 1891, Phelps and Wadleigh sold two of the San Francisco lots for $2,500, $2,000 of which was credited on the note and $500 paid to Wadleigh. On November 13, 1894, there was due on said note $6,823, and Phelps claimed that Wadleigh owed him, for moneys expended, the further sum of $297, making a total of $7,120, for which amount a new note, bearing the same rate of interest, and due six months after date, was given by Wadleigh. On that date, Wadleigh was the duly appointed attorney in fact of plaintiff Anna F. Smith, and she, by her said attorney, executed to Phelps a deed of certain mining property in Nevada county of which she was the owner and holder of the legal title, but in which "said Wadleigh had an equitable estate and interest," and of which property she and Wadleigh were the owners. This conveyance was made as further security for the payment of the indebtedness evidenced by the note. After the execution of this note, it was agreed by said Wadleigh, Smith, and Phelps, that Phelps might work said mining claim and make temporary leases of portions thereof, and that the proceeds should be applied, first, to the payment of the actual costs and expenses of such operations, and the surplus toward the payment and satisfaction of the indebtedness due Phelps. In accord with this agreement, Phelps did work said mining claim and make leases of limited portions thereof, from which he received money which plaintiffs are entitled to have credited on the indebtedness. On April 14, 1899, Wadleigh and Phelps agreed in writing to the extension of the $7,120 note, for a period of two years from that date. Phelps died June 11, 1899. His will was admitted to probate July 13, 1899, and defendant was then appointed executrix. Since his death, said executrix has continued to work said mine, and make leases of portions thereof. Wadleigh did not know what amounts had been received by Phelps and his executrix on account thereof. He has demanded an accounting from the executrix, but the same was refused, the executrix claiming that all of the property conveyed belonged absolutely to Phelps. On April 18, 1901, Wadleigh tendered, and offered to pay, the full amount due, on condition that the executrix make good and sufficient deeds of reconveyance of the various properties conveyed as security, but the executrix refused to receive such tender or offer, except as an unconditional payment, claiming that neither Wadleigh nor Smith was entitled to the reconveyance of any property upon the payment of the indebtedness. This action was commenced February 8, 1902, in

the superior court of Nevada county. Defendant filed her answer, in which she denied that any of the deeds executed by Wadleigh or Smith were given as mortgages, claiming that they were what they purported to be, viz.. absolute conveyances.

tled that the defense of laches may be set up in this way, where the laches is appar ent on the face of the complaint, the condition then being that the complaint does not show equity, or, in other words, does not state facts sufficient to constitute a cause of action. Kleinclaus v. Dutard, 147 Cal. 245, 250, 81 Pac. 516. But, while conceding the general principle to be as enunciated in the many decisions cited by the defendant upon the doctrine of laches, we are utterly unable to see any basis for the application of that doctrine, in the facts alleged in the complaint herein. There was absolutely nothing in the circumstances disclosed by this pleading tending to show any inexcusable delay on the part of plaintiffs in the commencement of proceedings to establish their claim, or any reason why it would be inequitable to then enter upon an inquiry as to the validity thereof. Whatever may be said as to the evidence, there was nothing in the facts al

Upon the issues thus made, the case came to trial. After the trial had proceeded for some five days, plaintiffs were permitted by the court to amend their complaint by alleging that the deed of Anna F. Smith was given, not only as further security for the payment of the $7.120 indebtedness evidenced by the note, but also as security for the payment to said Phelps of the further sum of $1,500 alleged to have been paid by said Phelps to one C. C. W. Cross. Defendant thereupon amended her answer, admitting the allegations of the complaint as to all the conveyances except that of the mining property, but denying that the conveyance of the mining property was a mortgage, and claiming that it was an absolute conveyance of the prop-leged in the complaint to give the slightest erty to Phelps. She denied the allegation of due tender, and also set up various provisions of the statute of limitations. Upon the trial the question as to whether the deed of the mining property was intended as a deed absolute or as security, and the question of adverse possession by Phelps of such property, were submitted to a jury impaneled to advise the court, and both questions were answered in plaintiff's favor. The court adopt-❘ ed these findings of the jury, and found the facts to be in accord with the allegations of the amended complaint. According to these find ings, there was due the estate of Phelps $11,112.03 on April 18, 1901, and it was adjudged that Wadleigh make payment thereof within 30 days after the judgment becomes final; that, upon his failure so to do, the property be sold and the proceeds applied to the payment of the indebtedness; that, if such payment be made by Wadleigh as provided, said executrix shall make and deliver the necessary reconveyances; and that, if she fails to so do. a commissioner appointed by the court for that purpose execute such reconveyances. Plaintiffs were, by the judgment, awarded their costs. This somewhat elaborate statement as to the pleadings has been considered essential to a proper understanding of some of the many points made and strenuously relied on by defendant for a reversal.

1. A demurrer was interposed to the first amended complaint and this was overruled. It was stipulated that the same demurrer be considered as interposed to the complaint as amended upon the trial, and overruled. The principal contention made here as to the ruling on demurrer is that the 'complaint on its face showed that the cause of action therein set forth was barred by the laches of plaintiff and that the demurrer should, therefore, have been sustained upon the general ground stated therein that the complaint failed to state a cause of action. It is set

intimation that Phelps ever did an act inconsistent with the theory that he held title to all the property involved, and held possession of the mining property, solely as security for an indebtedness of Wadleigh, the greater part of which, viz., the $7,120, was evidenced by the promissory note of November 13, 1894, and the time for payment of which, was only two months before Phelps' death, extended for a period of two years from April 14, 1899. There was nothing in the facts alleged to call for any assertion of their claims by plaintiffs prior to the death of Phelps and the maturity of the indebtedness. Immediately upon the expiration of the time of credit, plaintiffs offered payment and demanded a return of the property. A large portion of defendant's argument in support of the claim of laches is based upon the fact that it was not until the amendment made during the trial that plaintiffs made any allegation as to an alleged $1.500 indebtedness being also secured by the deeds. We cannot see that these allegations as to an additional indebtedness in any degree detracted from the effect of the original claim that the property was conveyed to Phelps and held by him as security for the $7,120 note and interest. That claim continued under the amended pleading, and the effect of the amendment was simply to show that there was still another item of indebtedness for which the property also stood as security, and which must be satisfied before a reconveyance could be had. We see nothing in the complaint upon which it can be held that defendant's general demurrer for want of facts should have been sustained on the ground of laches.

The demurrer also specified misjoinder of parties plaintiff, to wit, the joinder of Wadleigh with Mrs. Smith; and a misjoinder of causes of action, in that a cause of action in favor of Wadleigh was united with a

cause of action of Mrs. Smith. The conten- | each conceding the validity of the other's tion in this behalf is that, although all the property was mortgaged to secure the same indebtedness of Wadleigh to Phelps. Mrs. Smith was the only proper party plaintiff in an action to redeem as to her land, and Wadleigh was the only proper party plaintiff in an action to redeem as to his land, and that the so-called respective causes of action of these two parties could not be joined. There is no misjoinder of causes of action, for there is but a single cause of action stated. The effect of the various deeds given to secure the one indebtedness was to combine all the property thereby conveyed as a single security for the debt, just as completely as if there had been but one instrument of conveyance and but one mortgagor, and it is well settled that a mortgage creditor cannot be compelled to accept a partial payment of his claim, or make a partial surrender of his securities. No redemption as to a portion of the mortgaged premises can be insisted upon without a payment of the whole indebtedness. There can be no such thing as a partial redemption against the will of the mortgagee. While it is true that the owner of only a portion of the mortgaged premises may maintain redemption proceedings, his proceedings must necessarily be for a total redemption. "The debt being a unit, no party interested in the whole premises, or in any portion of them, can compel the mortgagee to accept a part of the debt, and to relieve the property pro tanto from the lien. *** If the person redeeming has only a partial interest, and there are other partial owners also interested in having the lien of the mortgage removed from their estates, * * * he must himself redeem the whole mortgage, and his only equity against them consists in his right to enforce the mortgage upon their estates as a security for obtaining a subsequent contribution." 3 Pom. Eq. Jur. (2d Ed.) § 1220. See, also, Gibson v. Crehore, 5 Pick. (Mass.) 146; Powers v. Golden Lumber Co.. 43 Mich. 468, 5 N. W. 656; 17 Ency. Pl. & Pr. p. 949. The action, whether brought by one or all of the parties entitled to redeem, is an action to redeem as to all the mortgages given to secure the single indebtedness, to accomplish a total redemption as to such indebtedness, and a complaint setting up the facts essential to such relief states but a single cause of action.

The fact that two persons owning different portions of the mortgaged property join as plaintiffs in such an action, asking that upon payment of the indebtedness the alleged portion of each be conveyed to him, does not change the character of the action or cause the complaint to state two causes of action. It is simply a case of two plaintiffs uniting in the statement of a single cause of action, each claiming a portion of the premises sought to be released from the mortgage, and 87 P.-7

claim. What we have said upon this subject is undoubtedly the general rule. If that rule has been modified at all in this state by the provisions of our section 347, Code of Civil Procedure, relative to the case where there is more than one mortgagor, or more than one person claiming under a mortgagor, "some of whom are not entitled to maintain" an action to redeem against the mortgagee in possession, the modification has been thereby made only as to the case therein specified, and this is not such a case. That two persons so situated may join as parties plaintiff in such an action is beyond question. Notwithstanding the fact that their interests in the mortgaged property are several, they have such a common interest in the subject of the action and in obtaining the general relief demanded, viz., the redemption as to the whole mortgaged property, as entitles them to join. See Bliss on Code Pleading, §§ 73 to 76; Code Civ. Proc. §§ 378, 381. By the Judgment granting such relief, in which they have a common interest, the ultimate rights of the plaintiffs as between themselves may be determined. Code Civ. Proc. $ 578. Mr. Pomeroy, in his Code Remedies, says: "The rule which regulates actions to foreclose prevails also in those brought to redeem. As all the persons entitled to share in the mortgage debt must unite in the foreclosure suit, so, in a suit to redeem, the mortgagor and all others who have a common right with him to redeem, must be made parties-in strict theory they should be coplaintiffs. * * * The general doctrine above stated is strictly enforced in redemption suits of all varieties, the underlying principle being that a redemption must be complete and total; that the creditor shall not be compelled to accept a partial payment of his claim, or to make a partial surrender of his securities. When two tracts of land are mortgaged to the same person to secure the same debt, and they afterward come into the hands of different proprietors, one of them cannot be redeemed without the other; the owners of both the parcels and all persons interested in them must be parties to the action, if not as plaintiffs then, at least, as defendants." Section 256. The principle therein stated is equally applicable where two tracts have been mortgaged by different persons to another person to secure a single indebtedness. It is also clear that even if Wadleigh had no interest whatever in any of the real property mortgaged, he would be a proper, if not a necessary, party in any action brought by Mrs. Smith for an accounting and ascertainment of the amount due on the mortgages and the redemption thereof. See Pomeroy, Code Remedies, §§ 249, 256, 257.

Other points were made in defendant's opening brief in support of the demurrer, but none of them are of sufficient importance

to warrant discussion here. The demurrer was properly overruled.

2. A careful examination of the 850 pages of the record, showing the evidence given on the trial of this case, has satisfied us that we would not be warranted in disturbing the conclusion of both jury and judge to the effect that the mining property deed of Mrs. Smith was given solely as security for Wadleigh's indebtedness. It is, of course, the universal rule that the presumption of law, independent of proof, is that such a deed is what it purports to be, viz., an absolute conveyance, and that this presumption must prevail unless the evidence to the contrary is entirely plain and convincing. This, however, does not mean that the evidence in the record on appeal must be entirely plain and convincing to an appellate court. This question of fact, like other questions of fact, is one for the trial court, and while, as said in Sheehan v. Sullivan, 126 Cal. 189, 193, 58 Pac. 543, the appellate court will consider the question as to the sufficiency of the evidence in the light of that rule, it will not disturb the finding of the trial court to the effect that the deed is a mortgage, where there is substantial evidence warranting a clear and satisfactory conviction to that effect.

All questions as to preponderance and conflict of evidence are for the trial court. The rule in this matter is declared in the cases cited by defendant. In Mahoney v. Bostwick, 96 Cal. 53, 30 Pac. 1020, 31 Am. St. Rep. 175, the same contention as to insufficiency of evidence was made, and this court after admitting that the presumption of absolute conveyance should prevail unless the evidence to the contrary was entirely plain and convincing, said: "But whether the evidence is of such character and strength as to produce this conviction is a question for the trial court to determine. That court ought always to be governed, in weighing the evidence and reaching the conclusion as to the facts, by this rule, which requires the plaintiff, in an action like this, to present a case free from doubt, and, unless the evidence is such as to leave in the mind of the trial judge a clear and satisfactory conviction that the instrument, which in form is a deed, was intended by all the parties thereto as a mortgage, the finding should be against the plaintiff. But we cannot say from the record which is before us that the superior court disregarded this rule in making its findings." In that case the court held that the evidence upon this material issue being conflicting in a substantial degree, the finding of the trial court that the deed was a mortgage must be allowed to stand. See, also, Penney v. Simmons, 99 Cal. 380, 382. 33 Pac. 1121; Sherman v. Sandell, 106 Cal. 373, 375, 39 Pac. 797, 798. In the last case cited, it was said: "To the extent that its determination rests upon the mere preponderance of evidence, or consideration of con

flicting or contradictory evidence, the finding of the trial court is not open to review in this court."

It would unduly lengthen this opinion and would serve no useful purpose to here review the great volume of evidence elicted upon this question. Counsel for defendant has ably and industriously made many points in his briefs in regard thereto that should have been, and probably were, made before the tribunal whose province it was to determine this question of fact, and whose decision thereon, in view of the evidence, must be held to be conclusive. It must suffice here to state that the positive evidence of three witnesses, including plaintiff Wadleigh, was to the effect that the title to the mining property of Mrs. Smith was received and held by Phelps as security for the Wadleigh indebtedness, just as the title to Wadleigh's property previously conveyed was received and held; that such evidence finds some corroboration in the dealings between Wadleigh and Phelps and in the correspondence between them and the receipt given by Phelps to Wadleigh for the deeds delivered as security at the inception of the original indebtedness on November 15, 1889; that there is nothing in the record from which it can fairly be concluded that Phelps to the knowledge of Wadleigh ever assumed or claimed to be the absolute owner of the mining property, free of claims of Wadleigh, Mrs. Smith, and others interested; and that there is nothing in the record that necessarily destroys the effect of all this evidence. There was in this sufficient support for the finding of the trial court to the effect that the deed of the mining property was given to secure the payment of the Wadleigh indebtedness.

3. Counsel for defendant does not dispute the well-settled proposition that parol evidence is admissible to show that a deed absolute in form was in fact given as a mortgage, but he claims that parol evidence was not admissible in this case as to the mining property, for the alleged reason that there was a separate contract in writing between the parties as to the terms upon which the property was conveyed and was to be held. The difficulty as to this contention is that there was no evidence of any such written contract. The unsigned memorandum in Mr. Phelps handwriting, found among his personal effects after his death, wrapped about a quitclaim deed of this property from Mr. Phelps and his wife to Mrs. Smith, and apparently designed to accompany a deposit of this deed in escrow and serve as a memorandum of the terms and conditions upon which it was to be delivered, did not show such a contract. Wadleigh testified positively that the understanding was that such a deed should be placed in escrow for delivery to him upon the payment of his indebtedness to Phelps,

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