Campbell v. Freeman

Citations

• 99 Cal. 546
• 34 P. 113
• 1893 Cal. LEXIS 709

Syllabus

<p>Resulting Trust—Security for Future Advances—Verbal Agreement—Mortgage by Deed Absolute in Form. —A conveyance of land made to a third p-r-son under a verbal agreement that he shall loan to the purchaser the amount of the purchase-money, and hold the title as security for the money so loaned, and •also for all other moneys which he shall thereafter loan to or advance for him, •creates a trust resulting to the purchaser by operation of law; but cotemporaneously with the creation of the trust there is impressed upon the title by virtue of the agreement a lien both for the purchase-money and also for such other moneys as the trustee may thereafter loan or advance to him, and the verbal agreement has the effect to render the deed absolute in form a mortgage to secure the purchase-money and all future advances made to the purchaser, which may be foreclosed by the trustee.</p> <p>Id__Equity Looks beyond Forms.— Equity looks beyond the forms of a transaction, and shapes its judgment in such way as to carry out the purposes of the parties to the agreement, and to protect each of them against any unconscionable advantage to be derived from the apparent form in which their transaction has taken place; and if a transfer is made as seeurity for the performance of an obligation, it is in equity a mortgage, irrespective of the form in which it is made.</p> <p>Id.—Allowance of Attorney’s Fee.—Where the note evidencing the indebtedness of the purchaser to the trustee provides for the payment of an attorney’s fee, a reasonable fee may be allowed upon foreclosure of the security.</p> <p>Appeal—Bequest for Amendment of Pleadings—Authentication in Transcript— Affidavit of Attorney.—The refusal of the court to allow a defendant to amend his answer cannot be considered upon his appeal from the judgment, where the request therefor and the ruling thereon are not incorporated in the statement or in any bill of exception, and is unauthenticated otherwise than by the affidavit of an attorn