KOCH v. BRIGGS, 14 Cal. 256

Field, C. J. delivered the opinion of the Court—Cope, J. and Baldwin, J. concurring. In March, 1858, the defendant executed to the plaintiff his promissory note for the sum of four thousand four hundred dollars, payable in twelve months, with a specified monthly interest, and providing, among other things, that in ease the interest was not paid as it monthly matured, or within ten days thereafter, the whole principal and interest should become due at the option of the plaintiff.

Simultaneously with the note the defendant and his wife executed a conveyance of the promises in controversy to Swift, upon the trust, among other matters, that in case of default in the payment of the note or interest, or any part thereof, and upon the application of the holder, he would sell the premises-at public auction, at a designated place in the county, to the highest bidder for cash, after fifteen days previous publication of notice, in oneyof the newspapers of the county, of the time and place of sale, ¡and execute to the purchaser a good and sufficient deed of the same, and out of the proceeds, after satisfying the expenses of the advertisement and sale, and of the trust generally, including moneys advanced for taxes, assessments, and other lions, pay the principal and interest due upon the note according to its tenor, and render the surplus, if any, to the grantors or their representatives.

The conveyance purports, on its face, to be made for the express purpose of so-curing the note referred to, and also provides that the principal and interest shall at once become due and payable upon breach of any of its terms.

The monthly interest not being paid, as provided, the holder of the note declared the entire principal and. interest due, according to its terms, and gave notice of the same to the maker; and thereupon the Trustee proceeded, and in July, 1858, after due publication of notice, sold the premises at public auction to the plaintiff, he being the highest bidder at the sale, and executed to him a deed of the same. Claiming title by this deed, the plaintiff brought the present action of ejectment.

Uo question was made on the argumentas to the power of the wife of the defendant to execute, with her husband, a conveyance upon the trusts and stipulations contained in the deed to Swift; nor any question as to the fairness of the sale by the Trustee; but it was insisted that the instrument was in fact a mortgage, under which the title of the defendant could not be divested except by a judicial foreclosure and sale. Assuming, for the disposition of the only point presented, that the wife could unite in the deed creating the trust, we do not regard the deed as subject to the objection of the Respondent.

It has no feature in common with a mortgage, except that it was executed to secure an indebtedness. This will be evident from a consideration of the rights of parties to a mortgage with reference to the mortgaged property. Where there is a mortgage there is a right, after condition broken, to a foreclosure on the part of the mortgagee, and a right of redemption on the part of the mortgagor. It matters not whether we consider the instrument a conveyance of a conditional estate in the land, as at common law, or as creating a mere lien or incumbrance for the purpose of security, as by our law.

The right to foreclose, whether resulting in vesting an absolute title to the property in the mortgagee, as formerly in England, or in a judicial sale of the premises, as in this State—exists in all cases of mortgage, after breach of condition, as does also the right to redeem the property from forfeiture, or from the incumbrance of the lien. These two rights are mutual and reciprocal. When the one cannot be enforced, the existence of the other is denied, and when either is wanting, the instrument, whatever its resemblance in other respects, is not a mortgage.

In reference to the deed in question, no suit for a foreclosure, as in cases of mortgage in England, would lie, for there could be no forfeiture of the estate to enforce, and of course no equity as against such forfeiture to foreclose. Mor would a suit lie for a foreclosure under our system—that is, for a decree adjudging a sale of the premises and the application of the proceeds to the payment of the debt, as such suit could only be based upon the contract of the parties, and the contract here is only that, upon the happening of a certain event, the Trustee shall sell.

Equity could not adjudge a salo, as in case of a mortgage, without disregarding the express contract of the parties, and making a new and different one. Equity would limit its relief to the contract made, and effectuate a sale only by enforcing the performance of the trust. Mor would any equity of redemption exist if the trust were performed, for, in its execution, no forfeiture would bo asserted from which relief could be sought.

In the performance of the trust the contract of the parties—in fact and in intention— would be carried out, whereas, in mortgages, the form of contract is one of conveyance, while in truth the contract is one only of security, and the equity is enforced to give effect to the intent of the parties against the legal consequences of the form of their undertaking. The authorities distinguish between an instrument like the one before the Court, and a mortgage. Thus, in Sampson v.

Pattison, (1 Hare, 536,) a conveyance was executed upon trust, that the premises should stand chargeable with the payment of fifteen hundred pounds and interest, with a proviso that, if the money and interest were not paid within two months after notice requiring payment of the same, the party entitled to the money should proceed and sell the premises. The money not being paid upon the required notice, the owners of the demand brought suit, praying in their bill, that an account be taken of the amount due on the security, and that the defendants be decreed to pay the same, or be foreclosed.

In sustaining a demurrer to the bill, for want of equity, the Yice-Chancellor said: “ The only question is, what are the terms of the contract ? They are, simply, that a certain sum of money and interest, shall be a charge on the estate, and if the same be not paid at a particular time, the party entitled to the money shall have power to sell the estate. There is no right of foreclosure arising out of such a contract.

Whore a charge is created by mortgage, the condition of which is, that if the money be not paid at a certain day, the estate of the mortgagee shall be absolute at law, this Court says that the failure in payment at the day shall not work a forfeiture, notwithstanding the express words of the contract; and upon the bill of the mortgagee, a further time for payment is appointed; if the money be not then paid, the Court refuses again to interfere, and leaves the parties to their legal rights.

The frame of the instruments under which the parties claim, in this case, does not bring them in any respect within the principle that the decree of foreclosure proceeds upon. The form of the security points out the manner in which the trust is to be worked out, and payment obtained. Notice requiring payment is to bo given in a particular manner, and after a certain time, if payment is not made, the Trustee may sell the estate.” In Reese v.

Allen, (5 Gilman, 239,) the deed recited an indebtedness of one thousand dollars, from the grantor to a third party, and that the conveyance was made for the purpose of securing its prompt payment on a particular day, and provided that if the money were paid on the designated day the deed should bo void, and the Trustee should reconvey; but if any part of the money at that time remained unpaid, then the Trustee should sell the premises, upon giving notice, at public auction, and execute a conveyance to the purchaser; and the question was presented whether the instrument was a mortgage or a trust deed.

The Court hold it to be the latter, and that it conveyed the absolute legal title to the Trustee, and said: “We cannot hold this to be a mortgage without saying that the manifest and clearly expressed intention of the parties shall cease to bo the rule of construction.” The deed in question not being a mortgage, the provisions of the 260th

Section of the Practice Act can have no application. The judgment upon the demurrer must be reversed, with leave to the defendant to answer the complaint within ton days after the remittitur is filed in the Court below. Ordered accordingly.