Baker v. Fireman's Fund Insurance

Citations

• 79 Cal. 34
• 21 P. 357

Syllabus

<p>Mortgage—Deed and Defeasance — Tender. —When a third person advances money to mortgagors to redeem land from a foreclosure sale by a mortgagee, and in consideration thereof receives a deed absolute in form from the mortgagors, and enters into a simultaneous agreement, under which the latter agree to purchase the land for a sum equal to the amount paid for redemption, the expenses of preparing the instruments, the premiums on policies of insurance, and an additional sum as compensation to the party advancing the money, and it is stipulated that time shall be of the essence of the contract, and that upon failure to fulfill the agreement of purchase, the grantee of the deed “ shall be released from all «obligations te convey said property, and shall be entitled to immediate possession of the same, said parties of the second part shall forfeit all rights thereto, and said parties of the first part shall be entitled to a strict foreclosure of this contract,” hut there is no agreement that in any contingency the parties of the second part are to be released from their obligation to pay, held, that the transaction is a mortgage.</p> <p>Id. —Parol Evidence. —Parol evidence is admissible to show that a deed and agreement of repurchase were intended as a mortgage, although as matter of law they constitute a mortgage upon the face of the papers.</p> <p>Id.—Registry of Deed and Defeasance — Notice of Mortgage.— When a deed and defeasance thereof are recorded, and together constitute a mortgage by legal construction, any subsequent grantee of the property is conclusively presumed to have had notice of the real nature of the transaction, and is put upon inquiry as to whether the mortgage was or was not paid, in whole or in part.</p> <p>Id. — Tender by Mortgagor of Balance Due—Stipulation as to Time. — When a deed and defeasance together constitute a mortgage, a failure to tender enough money to pay the debt in time will not divest the mortgagor’s title to the land, though the