Beverly v. Blackwood

Citations

• 102 Cal. 83
• 36 P. 378
• 1894 Cal. LEXIS 602

Syllabus

<p>Exchange op Lands—Agreement to Sell—Mortgage as Collateral— Cancellation.—Where, upon an exchange of lands, one of the parties agreed to take up certain mortgages on the land received by him, and to sell the land at a certain aggregate price, in tracts to suit purchasers, and to take mortgage security up„xi the land conveyed by him to the other party, as collateral security to insure the obtaining of the aggregate price agreed upon by sales in the market, until that price should be paid, with an agreement to release the mortgage at any time when that price was received, the person giving such mortgage may maintain an action to cancel it, upon proof of the refusal of the other party to sell the land, or to permit a sale at the price proposed, and proof of his con- , veyance thereof to his daughters by deeds of gift, thus putting it out of his power to sell the land at any price.</p> <p>Id.—Contract—Time, When Not oe Essence. —The general rule of equity is that time is not of the essence of a contract, unless it appears from the terms of the contract, in the light of all the circumstances, that such was the intention of the parties; and where it is not declared in the contract that time shall be of the essence, and there is no limitation of time within which a contract for the release of a mortgage, given as collateral security, must be performed, and no provision that it should become an independent charge upon the land mortgaged, if the land secured to be sold at a certain price was not sold within a limited period, a time fixed in the contract for the sale of the land, is not of the essence of the contract to release the mortgage.</p> <p>Id.—Estoppel oe Party in Default.—Where time is of the essence of a, contract, and a party agreeing to do an act within the time proposed is the only party in default, such party can take no advantage from his own wrong.</p> <p>Id.—Agreement to Take up a Mortgage.—An agreement to take up a mortgage, provided the party holding th