Boal v. Gassen

The cause having been tried, the court made its findings of fact and conclusions of law, and entered a judgment granting certain relief to the plaintiff, Alma L. Boal. On the defendant’s motion, made under section 663 of the Code of Civil Procedure, the court altered and amended its conclusions of law, and entered a different judgment. Alma L. and J. Mills Boal appeal from the second judgment.

The findings are, in effect, as follows: Alma L. Boal was, on December 1, 1911, the owner of a parcel of land in San Diego County. On that day she and her husband, J. Mills Boal, made and delivered their promissory note for seventy-five thousand dollars, payable September 16, 1913, to the defendant, A. G. Gassen, and secured the same by a deed of trust conveying the above-mentioned land to Title Insurance and Trust Company, as trustee. The note contained a provision for accelerating the due date of the principal on nonpayment of interest. In December, 1912, plaintiffs were in default in payment of interest, and were unable to raise funds to pay such interest or the principal of their note. The defendant was aware of their financial condition. The plaintiffs had theretofore conveyed the land to one Brad-beer for convenience in negotiating a loan. The land was, on December 19, 1912, worth two hundred and fifty thousand dollars, and there was then due from the Boals to Gassen $76,293.98. Prior to the last-named date, the said plaintiffs had endeavored, but without success, to obtain from Gassen an extension on their debt. About December 14th, Gassen notified them that, upon their failure to pay an installment of interest to fall due December 16th, he would elect to declare the principal due, unless they would convey the property to him upon the consideration that he would

The conclusions of law first drawn from these facts were that the deed executed by plaintiffs to Gassen on December 19, 1912, is a mortgage, that plaintiff Alma L. Boal is the owner of the land, that she and J. Mills Boal owe the defendant $97,812.82, and that said defendant has no interest in the land except a mortgage lien as security for the payment of said sum. Judgment was entered accordingly.

The conclusions, as amended following defendant's motion, were that the deed and other instruments executed by plaintiffs in December, 1912, were obtained without adequate consideration and under undue influence, and were voidable at plaintiffs’ election, upon the condition that defendant should be restored to his rights under the promissory note originally held by him, and the deed of trust given to secure the same; that the sums due on the note are secured by the deed of trust, and defendant is entitled to have the property sold, and that a commissioner should be appointed to make such sale. These conclusions are, in substance, embodied in the second judgment, the one which is attached to this appeal.

The appellants’ contention is that the court was right in the first instance in holding that the conveyance of December, 1912, was a mortgage. But this claim is entirely without support in the findings of fact. It is familiar law that an instrument, though in the form of an absolute conveyance, constitutes and will be treated as a mortgage, if in fact it was given as security for the performance of an obligation. (Lee v. Evans, 8 Cal. 430 ; Hodgkins v. Wright, 127 Cal. 690 , [ 60 Pac. 431 ].) The question is one of the intention of the parties. But the findings, which we have summarized, contain nothing which in any way indicates that the deed of December, 1912, was, so far as the understanding, agreement, or intention of the parties is concerned, given to the defendant as security for a debt. The situation plainly set forth is that Gassen insisted upon the transfer of the property in payment and extinguishment of his debt, and that the plaintiffs yielded to his demand. Nobody ever thought that Gassen was getting a new or continuing security.

The appellants rely upon the findings that Mrs. Boal is the owner of the land, and that she and her husband are indebted to Gassen. The continued existence of a debt is no

The judgment finally entered gives to the appellants at least as much as they have a right to ask. If the transaction of December, 1912, is to fall, the defendant must be entitled to the benefit of the security which he gave up in that transaction. His note is overdue and unpaid, and the judgment gives him no more than he could claim under the original, and unquestioned contract, when it decrees a sale under the deed of trust. We are unable to see that error was committed or that the interests of the appellants were prejudiced by the action of the court in directing a sale by a commissioner appointed by it, instead of by the trustee named in the deed of trust. (See More v. Calkins, 85 Cal. 177 , 190, [ 24 Pac. 729 ].)

Whether, on the facts found, the plaintiffs were entitled to any relief at all, is open to serious doubt. But, since the defendant makes no complaint of the judgment, this question does not call for consideration.

The judgment is affirmed.

Richards, J., pro tem., and Shaw, J., concurred.