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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 REDEEN-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 Cir. Proc. $ 347, proviiling that if there is more than one mortgagor or person claiming under him, some of wliom 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 individed part of the mortgaged premises, according to his interest, etc.

[Ed. Note.For cases in point, see vol. 35, Cent. Dig. Mortgages, $8 1825-1832.] :). 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.

In 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, SS 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 hold 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 hiin 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, theugh 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 conveycd, 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. IIeld, 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 authorize ing 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 inortgages, 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-- his indebtedness $6,830, for which amount a SERVICES.

new note, bearing interest at 9 per cent. A mortgagee in possession is not entitled to compensation for personal services on ac

per annum, and payable six months after count of the mortgaged property.

date was given, and it was agreed that Phelps 15. TRIAL-OPINION-FINDINGS-Costs.

should continue to hold as security the title Where the written opinion of the trial court

to the lands previously conveyed. On April provided that each party should pay his own (osts, but the findings and decision recited that

23, 1891, Phelps and Wadleigh sold two of plaintiff's were entitled to recover against the the San Francisco lots for $2,500, $2,000 of defendant a judgment for costs in the action, which was credited on the note and $500 paid etc., the findings and decision controlled the written opinion, and entitled piaintiffs to a

to Wadleigh. On November 13, 1894, there judgment for costs.

was due on said note $6,823, and Phelps 16. MORTGAGES-REDEMPTION-AMOUNT DUE- claimed that Wadleigh owed him, for moneys INTEREST--TENDER.

expended, the further sum of $297, making a Where, in a suit to have certain absolute conveyances declared to operate as mortgages

total of $7,120, for which amount a new note, only and for redemption, defendant denied plain- bearing the same rate of interest, and due tiff's claim, but was defeated, she was entitled six months after date, was given by Wadto interest on the amount found due her less the

leigh. On that date, Wadleigh was the duly costs a warded plaintiffs, from the date the judgment became final to such time as plaintiffs in

appointed attorney in fact of plaintiff Anna der the judgment tendered her the amount due, F. Smith, and she, by her said attorney, exor, in the event no tender was made, until fore- ecuted to Phelps a deed of certain mining closure sale, ordered in that event, had been

property in Nevada county of which she was made.

the owner and holder of the legal title, but Department 1. Appeal from Superior in which "said Wadleigh had an equitable Court, Nevada County; F. T. Nilson, Judlye.

estate and interest,” and of which property Action by W. P. Wadleigh and others

she and Wadleigh were the owners. This against Josephine A. Phelps, as executrix of

conveyance was made as further security the will of T. G. Phelps, deceased. From a

for the payment of the indebtedness evidenced judgment in favor of plaintiffs, and from an by the note. After the execution of this note, order denying defendant's motion for a new

it was agreed by said Wadleigh, Smith, and trial, she appeals. Affirmed.

Phelps, that Phelps might work said mining See 82 Pac. 200.

claim and make temporary leases of portions Geo. F. Witter, for appellant. C. W. Cross, thereof, and that the proceeds should be apfor respondents.

plied, first, to the payment of the actual costs

and expenses of such operations, and the ANGELLOTTI, J. This is an appeal from

surplus toward the payment and satisfaction a judgment given in favor of plaintiffs in an

of the indebtedness due Phelps. In accord action brought to have certain deeds of con

with this agreement, Phelps did work said veyance, absolute in form, decreed to be in inining claim and make leases of limited porfact only mortgages, the amount due thereon

tions thereof, from which he received money ascertained, and conveyances of the property

which plaintiffs are entitled to have credited therein described ordered executed upon the

the indebtedness. On April 14, 1899, payment of the amount adjudged due. Other Wadleigh and Phelps agreed in writing to the appeals taken by defendant from certain or- extension of the $7,120 note, for a period of ders made after judgment, including an order two years from that date. Phelps died June denying her motion for a new trial, have 11, 1899. His will was admitted to probate heretofore been dismissed, and still other July 13, 1899, and defendant was then apappeals shown by the transcript have been pointed executrix. Since his death, said exheld unnecessary and fruitless, in that they ecutrix has continued to work said mine, and were from nonappealable orders reviewable make leases of portions thereof. Wadleigh on the appeal from the judgment. Wadleigh did not know what amounts had been received et al. y. Phelps, 147 Cal. 135, 81 Pac. 418. by Phelps and his executrix on account there

The case made by the complaint as original- of. He has demanded an accounting from ly first amended, and upon which the case the executrix, but the same was refused, the went to trial and was partially tried, was executrix claiming that all of the property substantially as follows: On November 15, conveyed belonged absolutely to Phelps. On 1889, defendant's testator, T. G. Phelps, loan- April 18, 1901, Wadleigh tendered, and offered $5,500 to plaintiff Wadleigh, who gave ed to pay, the full amount due, on condition Phelps his note for the amount, payable six that the executrix make good and sufficient months after date, and bearing 9 per cent. deeds of reconveyance of the various properinterest. At the same time, as security for ties conveyed as security, but the executrix the payment thereof, Wadleigh and his wife refused to receive such tender or offer, exgave Phelps a deed of conveyance of certain cept as an unconditional payment, claiming lots in San Francisco, Cal., and other property that neither Wadleigh nor Smith was enin the state of Washington. On August 1, titled to the reconveyance of any property 1890, Phelps loaned Wadleigh $1,000 more, upon the payment of the indebtedness. This which, with the $5,500 and interest, made action was commenced February 8, 1902, in the superior court of Nevada county. De- tled that the defense of laches may be set fendant filed her answer, in which she denied up in this way, where the laches is apparthat any of the deeds executed by Wadleigh ent on the face of the complaint, the condior Smith were given as mortgages, claiming tion then being that the complaint does not that they were what they purported to be, show equity, or, in other words, does not viz.. alisolute conveyances.

state facts sufficient to constitute a cause of Upon the issues thus made, the case came to action. Kleinclaus v. Dutard, 147 Cal. 245, trial. After the trial had proceeded for some 230, 81 Pac. 516. But, while conceding the five days, plaintiff's were permitted by the general principle to be as enunciated in the court to amend their complaint by alleging many decisions cited by the defendant upon that the deed of Anna F. Smith was given, the doctrine of laches, we are utterly unable not only as further security for the payment to see any basis for the application of that of the $7.120 indebtedness evidenced by the doctrine, in the facts alleged in the comnote, but also as security for the payment plaint herein. There was absolutely nothing to said Phelps of the further sum of $1,500 in the circumstances disclosed by this pleading alleged to have been paid by said Phelps to tending to show any inexcusable delay on the one C. W. Cross. Defendant thereupon part of plaintiffs in the commencement of amended her answer, admitting the allega- | proceedings to establish their claim, or any tions of the complaint as to all the convey- reason why it would be inequitable to then ances except that of the mining property, but enter upon an inquiry as to the validity denying that the conveyance of the mining thereof. Whatever may be said as to the property was a mortgage, and claiming that evidence, there was nothing in the facts alit was an absolute conveyance of the prop- | leged in the complaint to give the slightest erty to Phelpis. She denied the allegation of intimation that Phelps ever did an act inconclue tender, and also set up various provisions | sistent with the theory that he held title to of the statute of limitations. Upon the trial all the property involved, and held possesthe question as to whether the deed of the sion of the mining property, solely as securmining property was intended as a deed ab- ity for an indebtedness of Wadleigh, the solute (ras security, and the question of ad- greater part of which, viz., the $7,120, was Verse juussession by Phelps of such property, evidenced by the promissory note of Novemwere sulmitted to a jury impaneled to ad- ber 13, 1891, and the time for payment of vise the court, and both questions were an- which, was only two months before Phelps' swered in plaintiff's favor. The court adopt-death, extended for a period of two years cul these findings of the jury, and found the from April 14, 1899. There was nothing in filcts to be in accord with the allegations of the the facts alleged to call for any assertion of nendel complaint. According to these find- their claims by plaintiff's prior to the death ines, there was due the estate of Phelps $11,- of Phelps and the maturity of the indebted112.0: on Ipril 18, 1901, and it was adjudged | ness. Immediately upon the expiration of that Walleigh make payment thereof within the time of credit, plaintiffs offered payment 30 days after the judgment becomes final; and demanded a return of the property. A that, upon his failure so to do, the property | large portion of defendant's argument in he sold and the proceeds applied to the pay- support of the claim of laches is based upon ment of the indebtedness; that, if such pay- the fact that it was not until the amendment ment he made by Wadleigh as provided, said made during the trial that plaintiffs made executrix shall make and deliver the neces- any allegation as to an alleged $1.300 indebtsary reconveyances; and that, if she fails to edness being also secured by the deeds. We so do, a commissioner appointed by the court cannot see that these allegations as to an adfor that purpose execute such reconveyances. ditional indebtedness in any degree detracted Plaintiffs were, by the judgment, a warded from the effect of the original claim that the their costs. This somewhat elaborate state

property was conveyed to Phelps and held ment as to the pleadings has been considered by him as security for the $7,120 note and essential to a proper understanding of some interest. That claim continued under the of the many points made and strenuously re- amended pleading, and the effect of the lied on his defendant for a reversal.

amendment was simply to show that there 1. A demurrer was interposed to the first was still another item of indebtedness for amended complaint and this was overruled. which the property also stood as security, It was stipulated that the same demurrer and which must be satisfied before a reconbe considered as interposed to the complaint veyance could be had. We see nothing in as amended upon the trial, and overruled. the complaint upon which it can be held that The principal contention made here as to defendant's general demurrer for want of the ruling on demurrer is that the complaint facts should have been sustained on the on its face showed that the cause of actiou ground of laches. therein set forth was barred by the laches The demurer also specified misjoinder of of plaintiff and that the demurrer should, parties plaintiff, to wit, the joinder of Wadtherefore, have been sustained upon the gen- leigh with Mrs. Smith; and a misjoinder of eral ground stated therein that the complaint causes of action, in that a cause of action failed to state a cause of action. It is set- 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 claim. What we have said upon this subproperty was mortgaged to secure the same ject is undoubtedly the general rule. If that indebtedness of Wadleigh to Phelps. Mrs. rule has been modified at all in this state by Smith was the only proper party plaintiff the provisions of our section 347, Code of in an action to redeem as to her land, and Civil Procedure, relative to the case where Wadleigh was the only proper party plaintiff there is more than one mortgagor, or more in an action to redeem as to his land, and than one person claiming under a mortgagor, that the so-called respective causes of action "some of whom are not entitled to maintain" of these two parties could not be joined. an action to redeem against the mortgagee in There is no misjoinder of causes of action, | possession, the modification has been thereby for there is but a single cause of action made only as to the case therein specified, stated. The effect of the various deeds and this is not such a case. That two pergiven to secure the one indebtedness was to sons so situated may join as parties plaincombine all the property therely conveyed tiff in such an action is beyond question. as a single security for the debt, just as Yotwithstanding the fact that their interests completely as if there had been but one in- in the mortgaged property are several, they strument of conveyance and but one mort- have such a common interest in the subject gagor, and it is well settled that a mortgage of the action and in obtaining the general creditor cannot be compelled to accept a relief demanded, viz., the redemption as to partial payment of his claim, or make a the whole mortgaged property, as entitles partial surrender of his securities. No re- them to join. See Bliss on Code Pleading, demption as to a portion of the mortgaged SS 73 to 76; Code Civ. Proc. $$ 378, 381. premises can be insisted upon without a By the Judgment granting such relief, in payment of the whole indebtedness. There which they have a common interest, the ultican be no such thing as a partial redemption mate rights of the plaintiffs as between themagainst the will of the mortgagee. While selres may be determined. Code Civ. Proc. it is true that the owner of only a portion $ 578. Jr. Pomeroy, in his Code Remedies, of the mortgaged premises may maintain re- says: "The rule which regulates actions to demption proceedings, his proceedings must foreclose prevails also in those brought to necessarily be for a total redemption. "The redeem. As all the persons entitled to share debt being a unit, no party interested in in the mortgage debt must unite in the forethe whole premises, or in any portion of closure suit, so, in a suit to redeem, the mortthem, can compel the mortgagee to accept gagor and all others who have a common a part of the debt, and to relieve the proper- right with him to redeem, must be made ty pro tanto from the lien. * * * If the parties--in strict theory they should be coperson redeeming has only a partial interest, plaintiffs. * * * The general doctrine and there are other partial owners also in- above stated is strictly enforced in redempterested in having the lien of the mortgage tion suits of all varieties, the underlying removed from their from their estates,

estates, * * * he principle being that a redemption must be must himself redeem the whole mortgage, complete and total; that the creditor shall and his only equity against them consists not be compelled to accept a partial payment in his right to enforce the mortgage upon of his claim, or to make a partial surrender their estates as a security for obtaining a of his securities. When two tracts of land subsequent contribution." 3 Pom. Eq. Jur. are mortgaged to the same person to secure (2d Ed.) 8 1220. See, also, Gibson v. Crehore, the same debt, and they afterward come in5 Pick. (Mass.) 146 ; Powers v. Golden Lum- to the hands of different proprietors, one of her Co., 43 Mich. 468, 5 N. W. 656; 17 Ency. them cannot be redeemed without the other ; Pl. & Pr. p. 919. The action, whether brought the owners of both the parcels and all perby one or all of the parties entitled to redeem, sons interested in them must be parties to is an action to redeem as to all the mort- the action, if not as plaintiffs then, at least, gages given to secure the single indebtedness, as defendants.” Section 256. The principle to accomplish a total redemption as to such therein stated is equally applicable where indebtedness, and a complaint setting up two tracts have been mortgaged by different the facts essential to such relief states but a persons to another person to secure a single single cause of action.

indebtedness. It is also clear that even if The fact that two persons owning different Wadleigh had no interest whatever in any portions of the mortgaged property join as of the real property mortgaged, he would plaintiffs in such an action, asking that up- be a proper, if not a necessary, party in any on payment of the indebtedness the alleged action brought by Mrs. Smith for an accountportion of each be conveyed to him, does not ing and ascertainment of the amount due on change the character of the action or cause the mortgages and the redemption thereof. the complaint to state two causes of action. See Pomeroy, Code Remedies, $8 249, 256, It is simply a case of two plaintiffs uniting 257. in the statement of a single cause of action, Other points were made in defendant's each claiming a portion of the premises opening brief in support of the demurrer, sought to be released from the mortgage, and but none of them are of sufficient importance

87 P.-7

we would not be warranted in disturbing vie

to warrant discussion here. The demurrer flicting or contradictory evidence, the findwas properly overruled.

ing of the trial court is not open to review 2. A careful examination of the 850 pages in this court." of the record, showing the evidence given It would unduly lengthen this opinion and on the trial of this case, has satisfied us that would serve no useful purpose to here re

view the great volume of evidence elicted the conclusion of both jury and judge to upon this question. Counsel for defendant the effect that the mining property deed has ably and industriously made many of Mrs. Smith was given solely as security | points in his briefs in regard thereto that for Wadleigh's indebtedness. It is, of course, should have been, and probably were, made the universal rule that the presumption of before the tribunal whose province it was to law, independent of proof, is that such a deed determine this question of fact, and whose is what it purports to be, viz., an absolute decision thereon, in view of the evidence, conveyance, and that this presumption must must be held to be conclusive. It must prevail unless the evidence to the contrary suffice here to state that the positive eviis entirely plain and convincing. This, how- dence of three witnesses, including plaintiff ever, does not mean that the evidence in the Wadleigh, was to the effect that the title to record on appeal must be entirely plain and the mining property of Mrs. Smith was reconvincing to an appellate court. This ques- ceived and held by Phelps as security for tion of fact, like other questions of fact, , the Wadleigh indebtedness, just as the title is one for the trial court, and while, as said to Wadleigh's property previously conveyed in Sheehan v. Sullivan, 126 Cal. 189, 193, was received and held; that such evidence 58 Pac. 543, the appellate court will consid- finds some corroboration in the dealings beer the question as to the sufficiency of the tween Wadleigh and Phelps and in the corevidence in the light of that rule, it will respondence between them and the receipt not disturb the finding of the trial court to given by Phelps to Wadleigh for the deeds de. the effect that the deed is a mortgage, where livered as security at the inception of the origithere is substantial evidence warranting a nal indebtedness on November 15, 1889; that clear and satisfactory conviction to that there is nothing in the record from which it can effect. All questions as to preponderance

as to preponderance fairly be concluded that Phelps to the and conflict of evidence are for the trial knowledge of Wadleigh ever assumed or court. The rule in this matter is declared claimed to be the absolute owner of the in the cases cited by defendant. In Mahoney mining property, free of claims of Wadleigh, v. Bostwick, 96 Cal. 53, 30 Pac. 1020, 31 Mrs. Smith, and others interested; and that Am. St. Rep. 175, the same contention as to there is nothing in the record that necesinsufficiency of evidence was made, and this sarily destroys the effect of all this evidence. court after admitting that the presumption There was in this sufficient support for the of absolute conveyance should prevail unless finding of the trial court to the effect that the evidence to the contrary was entirely the deed of the mining property was given plain and convincing, said: “But whether to secure the payment of the Wadleigh inthe evidence is of such character and strength debtedness. as to produce this conviction is a question 3. Counsel for defendant does not dispute for the trial court to determine. That court the well-settled proposition that parol eviought always to be governed, in weighing dence is admissible to show that a deed the evidence and reaching the conclusion as absolute in form was in fact given as a to the facts, by this rule, which requires mortgage, but he claims that parol evidence the plaintiff, in an action like this, to present was not admissible in this case as to the a case free from doubt, and, unless the evi- mining property, for the alleged reason that dence is such as to leave in the mind of the there was a separate contract in writing trial judge a clear and satisfactory convic- bet?en the parties as to the terms upon tion that the instrument, which in form is wbich the property was conveyed and was a deed, was intended by all the parties there- to be held. The difficulty as to this conto as a mortgage, the finding should be tention is that there was no evidence of any against the plaintiff. But we cannot say such written contract. The unsigned memofrom the record which is before us that the randum in Mr. Phelps handwriting, found superior court disregarded this rule in mak- among his personal effects after his death, ing its findings.” In that case the court held wrapped about a quitclaim deed of this that the evidence upon this material issue property from Mr. Phelps and his wife to being conflicting in a substantial degree, the Mrs. Smith, and apparently designed to acfinding of the trial court that the deed was company a deposit of this deed in escrow a mortgage must be allowed to stand. See, and serve as a memorandum of the terms also, Penney v. Simmons, 99 Cal. 380, 382. and conditions upon which it was to be de33 Pac. 1121; Sherman v. Sandell, 106 Cal. livered, did not show such a contract. Wad373, 375, 39 Pac. 797, 798. In the last case leigh testified positively that the undercited, it was said: "To the extent that its standing was that such a deed should be determination rests upon the mere prepon- placed in escrow for delivery to him upon derance of evidence, or consideration of con- the payment of his indebtedness to Phelps,

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