Corcoran v. Hinkel

Citations

• 4 Cal. Unrep. 360
• 34 P. 1031
• 1893 Cal. LEXIS 1050

Syllabus

<p>Mortgage—Waiver of Redemption.—Defendant in a Mortgage Foreclosure Suit Made a Compromise agreement with plaintiff, whereby the latter agreed to accept a part of the amount claimed if paid within sixteen months, the purpose of the parties being stated to be a sale of the mortgaged premises after a reasonable time to extinguish the debt as fixed by the contract and to save expenses of foreclosure sale. The contract provided that the land be conveyed to trustees and be by them reeonveyed in ease defendant paid plaintiff within twelve months; that defendant might sell any part by having the price paid to plaintiff; that after twelve and before sixteen months plaintiff might sell the remainder at auction; that a decree should be entered for the full amount claimed, and proceedings stayed until the expiration of the sixteen months, at the end of which time the trustees should convey the unsold land to plaintiff, who might sell it under the decree, in which case the agreement fixing the amount due should be void. Defendant conveyed the land to the trustees, and then negotiated a sale to H., but defects in the title delayed the closing of the sale until after the sixteen months during which the trustees had power to convey to a purchaser, and it was necessary to convey to plaintiff in order to give H. a good title. Plaintiff, with defendant’s consent, conveyed the land to H. at the agreed price. Held, that Civil Code, section 2889, which provides that “all contracts for the forfeiture of property subject to lien, in satisfaction of a lien secured thereby, and all contracts in restraint of the right of redemption from a lien, are void,” had no application to such transaction.</p> <p>Mortgage — Redemption by Administrator. — The Fact That Plaintiff did not formally cancel the indebtedness against such defendant did not entitle the latter’s administratrix to redeem the land from the sale to H., when it appeared that such plaintiff never asserted the existence of any such i