THE PEOPLE ex rel. FORD v. IRWIN, Sheriff, 14 Cal. 428

Cope, J. delivered the opinion of the Court—Field, C. J. and Baldwin, J. concurring. This is an application for a mandamus to compel the defendant, as Sheriff of Sierra County, to execute a deed to the relator, of certain real estate described in the petition. On the 26th of April, 1856, Thomas J. Taylor recovered a judgment in the District Court of Yuba County, against Cutler Arnold, for twelve hundred and two dollars and interest, and on the 2d of September, following, a transcript of this judgment was filed in the office of the Recorder of Sierra County.

On the 24th of January, 1857, the defendant, under and by virtue of an execution issued upon said judgment, sold the property in question for one hundred dollars; Taylor himself becoming the purchaser, and receiving the usual certificate of sale. On the 23d of March, 1857, Taylor assigned this certificate to the relator, in consideration of seven hundred dollars. On the 8th of April, 1857, A. J.

Rigby recovered a judgment in the District Court of Sierra County against Arnold, for two thousand and seventy dollars, and on the 23d day of July, 1857, paid to the defendant, as Sheriff, etc. the sum of eight hundred and fifty dollars, to redeem the property from the sale to Taylor. This sum being tendered to the relator, he refused to accept it, and subsequently demanded a deed, which he failed to obtain. After the expiration of the period for redemption, the defendant executed a deed of the property to Rigby.

On the trial of the case, the relator gave in evidence a deed of the property from Arnold and wife to himself, dated February 23d, 1857, and acknowledged and recorded on the 25th of March, 1857.

To avoid the effect of this deed the defendant gave in evidence an instrument, dated March 16, 1857, by which the relator agreed to rcconvoy the property to Arnold and wife, upon their paying to him, within one year from that date, the sum of eight thousand six hundred dollars, with interest at two and one-lialf per cent, per month, less the amount which should be received by him as the rents and profits of the premises during that period.

It is expressly declared in this instrument, that it shall only be treated as a contract to convey, and not as an acknowledgment that the conveyance from Arnold and wife was intended as a mortgage. The first question arising from these facts is, whether" Rigby was a redemptioner at the date of his alleged redemption from the sale to Taylor.

The right to redeem is given by statute, first, to the judgment debtor, or his successor in interest, and, second, to a creditor having a lien by judgment or mortgage subsequent to that on which the property was sold. (Wood’s Dig. 197, Sec. 230.) It is not denied that Rigby was a judgment creditor, but it is claimed that his judgment never became a lien upon the property, and that the proceedings under it were, therefore, ineffectual for any of the purposes of a redemption.

The reasons assigned are, that when the judgment was recovered, the title to the property had passed from the judgment debtor and vested in the relator, and that in the hands of the latter the property was not subject to the lien of the judgment, nor to any proceedings affecting the title, the validity of which depended upon such a lien. It is undoubtedly true that the statutory lien of a judgment upon the real estate of the judgment debtor, can attach only upon property in which such debtor has a vested legal interest. This was admitted arguendo, in the case of McMillan v.

Richards, (9 Cal. 365,) and we have no doubt of its correctness. It follows, that if the title to the property passed to and vested in the relator, under the deed from Arnold and wife, nothing remained upon which the lien of the judgment subsequently recovered by Rigby could attach, and the proceedings under it to redeem the property were null and void. It is contended, however, that this deed and the contract to reconvey are parts of the same transaction and must be construed together, and that thus construed they amount merely to a mortgage.

If this position be correct, the legal estate did not pass to the relator, but remained in Arnold, and the rights of Rigby as a redemptioner under his judgment cannot be questioned. This branch of the case rests upon the construction of these instruments. The deed is in the usual form of an absolute conveyance, and, purports to have been given in consideration of one hundred dollars. The recital in the deed itself is the only evidence of what the consideration really was.

The contract refers to the conveyance in general terms, and provides that upon the performance of certain conditions, the property shall be reconveyed. These conditions are, as we have already stated, the payment within a given time, of a certain sum of money with interest at a specified rate, deducting the rents and profits of the premises during the period limited for payment. Both of these instruments were delivered at the same time, but the contract is not under seal, and has never been acknowledged or recorded.

The circumstances in favor of construing this transaction as a mortgage, are the cotemporaneous delivery of the two instruments, and the provisions of the contract in regard to interest, and in relation to rents and profits j and these circumstances are favorable to such a construction only so far as they tend to establish the existence of a debt. A mortgage is a security for a debt, and cannot exist independently of the relation of debtor and creditor between the parties. “ If the deed or conveyance be accompanied,” says Vice-Chancellor McCoun, in Robinson v.

Cropsey, (2 Edw. 143,) “by a condition or matter of defeasance expressed in the deed, or even contained in a separate instrument, or exist merely in parol, let the consideration for it have been a pre-existing debt, or a present advance of money to the grantor— the only inquiry necessary to be made is, whether the relation of debtor and creditor remains, and a debt still subsists between the parties.

Eor if it does, then the conveyance must be regarded as a security for the payment, and be treated in all respects as a mortgage.” The question is, therefore, whether the consideration for this conveyance was a debt, either pre-existing or created at the time, which was not extinguished but still subsisted between the parties. The contract to reconvey does not, in terms, recognize the creation or existence of a debt, nor does it do so by implication, unless the provisions referred to can be construed into such a recognition. We think that this is not the proper construction of these provisions.

The contract cannot, of course, be treated as a technical defeasance. It can be regarded only as evidence tending to establish the intention of the parties and the nature of the transaction between them, and for these purposes parol evidence would have been equally admissible, and entitled to equal consideration. It was as competent for the parties to contract for the payment of interest as for the performance of any other matter embraced in the agreement, and they could as well contract for the rents and profits of the land as for the land itself.

If it were shown that the consideration for the conveyance was a pre-existing debt, these provisions would afford very strong evidence that the debt had not been extinguished, and that the conveyance was intended as a mortgage to secure its payment. But no.such fact is attempted to be shown. Aside from the papers themselves, there is no evidence that a debt ever existed between the parties.

The conveyance is absolute and unconditional, and the provisions of the contract to reconvey are not only entirely consistent with the idea of an independent agreement, but this construction has been given to it in express terms by the parties themselves.

We concede, of course, that the parties could not by a mere stipulation, enforce an arbitrary construction of the contract in opposition to the plain import and meaning of its provisions, but their intention, as expressed by themselves, is worthy of some consideration, and if we were really doubtful of the construction, we should be inclined to act upon it as the safest solution of the difficulty. This case is essentially different from the case of Hickox v.

Lowe, (10 Cal. 197.) There, the consideration for the deed was a precedent debt, the defeasance was under seal, and both instruments were executed and delivered at the same time, and acknowledged and recorded together. If the facts of this case were the same, we should experience no difficulty in arriving at the same conclusion. The objections to the introduction of the deed were not well taken. It was offered in response to the defense set and was clearly admissible without being specially pleaded. The question of merger cannot be determined in this proceeding.

The right to a deed is the only matter in controversy, and it is no answer to say that the deed, when obtained, will not be of any value. It follows that the Court erred in dismissing the application of the relator, and the order to that effect must be reversed, and the cause remanded. Ordered accordingly.