Cline v. Robbins

Citations

• 6 Cal. Unrep. 176
• 55 P. 150
• 1898 Cal. LEXIS 1063

Syllabus

<p>Deed as Mortgage.—A Judgment Declared an Instrument in form a deed absolute to be a mortgage, and provided that it should be foreclosed, and that each party should pay his own costs and one-half of the jury fee. The jury fee had been paid by plaintiff, the mortgagor. The mortgagee appealed, whereupon the decree was modified by denying a foreclosure because not prayed for, and by directing that the decree fix a reasonable time within which the mortgagor should pay the balance due, and that, in default of such payment, the action should be dismissed. An “amended” judgment was then entered in the lower court, in accordance with the mandate, but it made no reference to costs or jury fees. Held, that the original judgment, in so far as it referred to the costs or jury fees, was not affected.</p> <p>Deed as Mortgage.—A Judgment Declaring a Deed to be a Mortgage, and ordering a foreclosure of it, found the amount due the mortgagee, and directed that “the commissioner .... pay to plaintiff [the mortgagor] or his attorney, out of said proceeds [of the foreclosure sale], the sum of thirty-six dollars, jury fees, costs of this suit.” Held, that the cost should be deducted from the amount due the mortgagee, and not from the proceeds of the sale.</p> <p>Deed as Mortgage.—A Judgment Declared a Deed á Mortgage, and ordered defendant, the grantee, to reconvey on payment of a certain sum, and directed that, unless the payment was made within a certain time, the action should be dismissed. Held, that it was no ground for dismissing the action that prior to a tender the grantor conveyed the property in fraud g£ creditors.</p>