BARTON RICKETSON v. RICHARDSON, THROCKMORTON, et als., 19 Cal. 330

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. This was a bill filed by plaintiff in February, 1856, against one Wm. A. Richardson and others for the foreclosure of a certain mortgage, made by Richardson in his lifetime, of a rancho in Marin county, called the Saucelito Rancho, containing three square leagues, more or less, claimed under a Mexican grant. The mortgage, as alleged, was given to secure three promissory notes, dated twenty-fifth March, 1852—one to the order of Jeremiah Clarke for $3,320, one to the order of L.

Etoubleau for $2,360, one to the order of Charles Myer for $3,540—each payable six months after date, with interest at the rate of five per cent, per month, except Clarke’s, which was at the rate of six per cent. The bill charges that these notes were assigned, before maturity and for value, to Alfred J. Ellis, and that on the twenty-fifth of September, 1852, by agreement, the rate of interest was reduced to three and one-half per cent, per month; and that Ellis, on the twenty-fifth of March, 1853, assigned the notes and mortgage to the plaintiff, and that the mortgage was duly recorded, etc.

The other defendants are made parties upon the general averment that they claim some interest in the mortgaged premises. Personal service of process was had on Richardson. The bill was verified, and lis pendens filed. On the twenty-eighth of July, 1857, a supplemental bill was filed, in which is alleged the death of Richardson, leaving a will, of which one Manuel Torres was executor; and that the claim was presented to him, verified, and was rejected in writing on the sixteenth of March, 1857.

Suit was revived in the name of Torres, executor, and stipulation entered into by counsel of Torres with plaintiff, consenting to revival, waiving process, and admitting all the allegations in the supplemental complaint to be true.

Afterwards, and after certain proceedings—among them a judgment of this Court on appeal—an amended complaint was filed, which set up, among other things, that Richardson requested Ellis to obtain an indorsement of the notes, and an assignment of the mortgage, and to extend the time of payment and reduce the interest ; that the rate of interest due on the notes and mortgage was •actually known to the defendants, apart from the face of the mortgage ; that Richardson owed plaintiff a certain other note of $5,000, dated on the eleventh of June, 1853, with interest at the rate of five per cent, per month; that Throckmorton only held the premises in trust for Richardson, and as agent, subject to the incumibrances, under a deed of August 7th, 1855, which is exhibited; and that other deeds (in the record) of February 9th, 1856, to Throckmorton, were executed to him as agent and for like purposes, and that Throckmorton paid no consideration to Richardson on these : accounts, and that he never paid off these incumbrances.

Torres, the executor, in June, 1859, answered the amended bill, denying the indebtedness on the notes; he avers that they were paid, as follows: that Richardson, on the second of June, 1858, by one Avis, his attorney in fact, conveyed to the plaintiff 16,168 acres of the Albion Rancho, in Mendocino county, in trust for the plaintiff, for the purpose of sale on account of Richardson, and if not sold within twelve months from the time of the conveyance, to be reconveyed to Richardson ; and that on the same day plaintiff executed a bond to Avis, conditioned to pay, at the rate of one dollar per acre, in case he did not reconvey within the year ; and that Avis held this bond as agent of Richardson without personal interest in himself; that he did not reconvey, but converted the land to his own use ; and on the eighteenth of November, 1857, conveyed the same to one Hackett; and that he has not paid the $16,168, etc.; that plaintiff has got this bond through the fraud of the holder and Avis, and that plaintiff is a nonresident and is insolvent.

Defendant claims this sum as an offset to the plaintiff’s demand, and prays for counter judgment for excess, etc.

Throckmorton filed several answers, in which he admits the making of the notes and mortgages, but avers there is no mention of the rate of interest in the mortgages of record, and knows only the rate from the record; claims that on the seventh of August, 1855, he became the purchaser, by good and sufficient deed of conveyance, of all the right, title and interest of Richardson and wife, and his son Stephen, and his daughter Mariana Torres, and her husband Manuel, to the premises ; that by the grant, the land was vested in Richardson and family, and afterwards the land was partitioned—giving the mode, etc.—of which partitioned parcels the different members took possession ; sets up the same facts in regard to the Albion Rancho as in Torres’ answer, and that the land was worth three dollars an acre; sets up that the transfer of the notes and mortgages to Ellis amounted to payment; sets up that the bond of plaintiff was a covenant running with the land, and was transferred to him by deed of February 9th, 1856, under a provision of that deed (in the record) conveying all Richardson’s interest in expectancy ; that plaintiff is insolvent, etc.; that the $5,000 note in the bill was made without authority, etc.

It is not necessary to notice, for any purpose of this decision, the other answers. The mortgage from Richardson to plaintiff contains this provision : “ This conveyance is intended as a mortgage to secure the payment of three promissory notes, given by the party of the first part, bearing even date herewith, one of which notes is for the sum of two thousand three hundred and sixty dollars, ($2,360) and is payable to the order of L. Etoubleau, six months after the date thereof, at the banking house of Messrs. Tallant & Wilde, at San Francisco.

Another of which notes is for the sum of three thousand five hundred and forty dollars, ($3,540) and is payable to the order of Charles Meyers, six months after the date thereof, at the banking house of Messrs. Tallant & Wilde, at San Francisco. And the other of which notes is for the sum of three thousand three hundred and twenty dollars, ($3,320) and is payable to the order of Jeremiah Clarke, six months after the date thereof, at the banking house of Messrs. Tallant & Wilde, at San Francisco.

And if the payment of the amount of the said notes shall be made at maturity, then these presents shall become void, and the estate hereby granted shall cease and utterly determine; but if default shall be made in the payment of the said sum of money, or the interest, or any part thereof, at the times hereinbefore specified for the payment thereof, the said party of the first

part in such case does hereby authorize and fully empower the said Jeremiah Clarke, his heirs, executors, administrators and assigns, to sell the said hereby granted premises at public auction, and convey the same to the purchasers in fee simple, and out of the money arising from such sale to retain the principal and interest which shall then be due on the said note, together with all costs and charges, and pay the overplus, if any, to the said party of the first part, his heirs, executors, administrators or assigns.” The bond executed by plaintiff to Avis is as follows: “ Know all men by these presents, that I, Barton Ricketson, of the city of San Francisco and county of San Francisco, State of California, am firmly bound and held to Wm.

Parsons Avis, of the city and county aforesaid, in the sum of $32,000, money of the United States, to be paid to the said Wm. Parsons Avis, his administrators or assigns, which payment, well and truly to be paid, I bind myself, my heirs, executors, administrators or assigns, firmly by these presents, sealed with my seal, this second day of June, A. D. 1853. “ The consideration of this obligation is such, that if the above bound Barton Ricketson, his heirs, executors, administrators or assigns, do well and truly pay or cause to be paid unto the above named Wm.

Parsons Avis, his heirs, executors, administrators or assigns, the full sum of $16,168, like money aforesaid, together with one-half of the profits that may arise from a sale of 16,168 acres of land, situate and being a part or parcel of land on the Albion Rancho, as described in a deed this day made to the said Ricketson by Wm. A. Richardson, for the purpose of effecting sales, if possible—otherwise, said land to be reconveyed to the said Wm.

Parsons Avis within one year from date—then this obligation to be void, otherwise to remain in full virtue. “ Barton Ricketson. [l. s.] “ Signed and sealed in the presence of B. H. Allen.” The bond was executed in consideration of a deed for 16,180 acres of the Albion Rancho, by Richardson, the object of the conveyance, as plaintiff contends, being to enable the plaintiff' to sell the land, and to appropriate the proceeds, or so much as necessary, to the payment of the note of $5,000 mentioned in the pleadings.

On the nineteenth of April, 1854, Avis made an indorsement upon this bond as follows: “ It is agreed that Barton Ricketson may convey the land within described to Messrs. Compton & Davidson of San Francisco, or to whomsoever Wm. A. Richardson may appoint, after giving full satisfaction for a certain bond of which the within is a copy, and of all my claims in the premises. “ William Parsons Avis. “ Witness: Chas. B. A.

Adams.” It seems that, on the twenty-ninth of September, 1853, Avis, the attorney in fact for Richardson, addressed to the plaintiff a letter as follows: “ San Francisco, September 29th, 1853. “ Barton Ricketson, Esq., New Bedford : Dear Sir : The affairs of Capt. Win. A. Richardson are in process of liquidation by his friends, Messrs. Compton & Davidson, residents of this city, who request an immediate reconveyance of the 16,168 acres of the Albion Rancho, which I deeded to you in June last.

Please deed the same to me in accordance with the express understanding, as per bond, and inclose the same with the note for $5,000 to your agent, Mr. Wood, with whom a settlement will be made on its receipt. “ Very respectfully and truly yours, etc., “ William Parsons Avis.” And it seems from the proof that the plaintiff did, on the nineteenth of April, 1854, execute a deed of this Albion Rancho property to Compton & Davidson. The main points made upon this state of facts are these: 1.

That the mortgage of the plaintiff was good only, at most, for the sums expressly mentioned in the mortgage and legal interest on those sums, from the maturity of the notes, and not good, as against the vendees of Richardson, for the conventional interest mentioned in the notes. 2.

That the facts in regard to the bond and the plaintiff’s connection with the land, part of the Albion Rancho, and his failure to convey the same within the year, constitute a liability on his part to Richardson, or those representing him, or his privies in estate, for the amount of $16,180, which sum is to be set off against the mortgage as of the date when due. Both of these propositions are plainly indefensible. It is true the mortgage does not describe, or profess to describe with exactness, the debts secured by it.

It describes the notes, except as to the rate of interest, and provides that on default of payment of the sums mentioned, with interest at their maturity, then the mortgagee may sell the mortgaged premises. It is not necessary that literal exactness should be used in describing the indebtedness in a mortgage security, if the description be correct as far as it goes, and if enough be said to direct the attention of parties dealing with the property to sources of correct and full information, provided that these persons be not deceived, or subject to be misled by the language used.

It is true it has been held in some cases, that where a note is described in a mortgage, as it is made or recorded, as a note for a given sum, the mortgagee cannot set up, as against a subsequent purchaser or mortgagee, a different and larger debt; for the plain reason that a party dealing with or in respect to the property from an inspection of the mortgage, contracts in reference to its terms, and cannot be supposed to know or suspect that the real fact is different from the recorded account of it. But the question here is wholly different.

Here, the mortgage not only asserts that the debts recited in it bear interest, but, at least inferentially, that they bear a conventional rate of interest; for the mortgage provides for the payment of the interest accruing at the time of the maturity of the debts; and there would be no interest due then by the mere force of the law, unless it had been expressly agreed that the notes should bear interest before they were due. Now, there is no intendment, under such laws as ours, that when interest is the subject of stipulation, any particular rate is agreed on.

If there were any such presumption, probably the inference would be that the interest so agreed on was the usual rate prevailing at the place of contract. When it was seen that the notes were to bear, and did bear, interest, and that the property was pledged for the principal and that interest, and the names of the payees, the dates, etc., were given, it became the duty of a subsequent incumbrancer to inquire into the facts and ascertain them.

A mortgage may be given to secure future advances, and of course, the amount cannot be inserted in the mortgage ; and yet all such mortgages would be invalid according to the argument which would maintain the invalidity of this, viz: that the exact amount of the indebtedness was not shown upon the face of the paper itself. So, if a mortgage were made as indemnity against contingent liabilities. The authorities which maintain the proposition, that this description is sufficient, are numerous. (Pike v. Collins, 33 Me. 45 ; Slaughter v. Pasco, 5 Conn. 442; Crane v. Deming, 7 Id. 388; Booth v.

Brannan, 9 Id. 286 ; Dean v. De Lezardi, 24 Miss. 424.) And especially see Richards v. Holmes, (18 How. 145) which last case is singularly apposite in the facts to those here. The Court says.; “ It is true the deed does not purport to describe the interest which is to become due on the note; but it clearly shows that it bore interest at some rate, and payable at some time or times, and this was sufficient to put a subsequent incumbrancer on inquiry as to what the rate of interest and the time or times of its payment were.

The deed in effect declares, and its record gives notice to subsequent purchasers, that its purpose is to secure the payment of such interest as has been reserved by the note—the amount and date and time of payment of which is mentioned. We do not think the mere omission to describe in the deed what that interest was to be is a defect of which advantage can be taken by the complainants.” 2. The other point is equally misconceived.

It has been seen that Avis, although acting as agent for Richardson, took the bond in question from Rieketson in his own name, and that it imported a direct obligation of conditional reconveyance of the land to him, Avis, within the year. If Avis had a right to make this contract, it would seem he had the same right to discharge, modify or control its obligation. He might, from anything that we can perceive, have entirely released Rieketson from compliance.

He directed him, as it seems by the letter which has been noticed, to reconvey to him ; and though this was not done in form, the reason appears from the record, by very fair inference from established facts. It seems that Compton and Davidson were the agents as well as the mortgagees of Richardson, and had control of his affairs and property ; and not only permission, but express authority were given to Rieketson to convey the property to them.

Richardson, after this, holding, as he claimed, the equitable title to this land, or the right to call for a conveyance of it—the land not having been sold within the year—treated the land afterwards as his, as appears from his disposition of it in his subsequent deeds, and in his will. But there is another answer: It has been seen that by the agreement indorsed on the bond, Rieketson was empowered to convey the land to “ Messrs. Compton and Davidson, of San Francisco, or to whomsoever Wm. A.

Richardson may appoint.” It is plausibly argued that this changed the terms of the bond, or dispensed so far with its obligations as to place the reconveyance in the hands or power of Richardson himself; and it seems that he exercised the privilege of directing the course of the title. But it is not necessary to pass on this view, for we are clearly of the opinion that the claim upon this bond for the failure to make the reconveyance within the year, is a claim for unliquidated damages, and not a liability for a definite and ascertained sum.

Taking the whole transaction together in the light of surrounding circumstances, and it amounts to this : Richardson owed a sum of $5,000 to Ricketson; he conveyed to Ricketson a tract of land—part of the Albion Rancho— partly for the purpose of paying this debt, and partly that the land might be sold in the Eastern States.

Avis was the acting agent of Richardson, and after making a deed in form absolute to Ricketson, he took the bond of Ricketson on the terms recited, and in a penalty of $32,000, payable to Avis himself, conditioned to pay to Avis $16,180—at least, if the land was sold, and one-half, also, of the profits arising from the sale of the lands-—the object of the deed being to sell the land if possible; but if the land could not be sold, then the land to be reconveyed within the year.

The whole matter, when reduced to the true understanding of the parties, is as if Richardson said to Ricketson: “ You are to sell this land for the best price you can get, but not to sell for less than $16,180, or at the rate of a dollar an acre ; if you sell at all, I (Richardson) will be entitled to that price; if you sell for more, we will divide between us the excess, less expense; if you do not sell within the year, you are to reconvey to me.” If there was a breach of this promise to reconvey, the plaintiff was not liable to a fixed penalty of $16,180 for such breach, but would be liable only for the damages sustained by the breach, as in other cases of contract; for it is inconceivable that a man would absolutely bind himself to do

an act, from the omission to do which no injury would necessarily result, and which act might be prevented by so many casualties or accidents, in such a sum. Neither the object to be gained, nor the situation or relation of the parties, give any plausible color for supposing such to have been the intention of the parties; and the words of the agreement do not annex any such penalty to the failure, and this design must be evidenced by the clearest proof before such a consequence can be effected.

The deed to Hackett, executed long after the death of Richardson, made and induced by the fraudulent acts of the agent, Avis, in the transfer of the land to him or to Post (his predecessor) was not such a sale as was contemplated, even if a sale then, under any circumstances, would have been effectual to charge Riclcetson with the penalty. It is too clear for argument that an unliquidated claim for damages is not the subject of offset, either equitable or legal, even if the damages in this case were not merely nominal. 3. There is nothing in the other points deserving of serious consideration.

The record does not show that the notes and mortgage were not presented to the executor, and the mere omission to show that they were, in the face of the express admission in the first-answer of Torres and the stipulation of the counsel, is not enough to induce us to affirm a judgment which evidently was rendered on different principles and without any reference to this circumstance. The statute does not require a presentation of the notes, etc., to be postponed until after the publication of notice by the executor, but the holder may anticipate such publication.

Decree reversed and cause remanded for a decree in pursuance of the principles of this opinion.