Hardin v. Dickey

Citations

• 123 Cal. 513
• 56 P. 258
• 1899 Cal. LEXIS 1109

Syllabus

<p>Mortgage—Beneficial Interest—Agreement by Trustee—Pro Rata Payment—Purchase under Foreclosure—Trust.—Under a contemporaneous written agreement accompanying a note and mortgage executed rfi the name of one of two persons jointly interested therein, by which the mortgagee named agreed to collect or foreclose the mortgage, and to pay to the beneficial owner his pro rata share out of any sums paid on the mortgagee the foreclosure of the mortgage with the consent of the beneficial owner, in' an action brought by a subsequent lien holder, and a purchase made thereunder in the name of the mortgagee, does not constitute a payment, and does not render the purchaser liable to an action upon the agreement. He is merely a trustee for the co-owner as to his proportionate interest in the title obtained by the foreclosure.</p> <p>Id.—Receipt to Sheriff—Explanation.—A receipt may always be explained; and never so well as when given to the sheriff to make up his record in a foreclosure sale.</p> <p>Id.—Purchase in Name of Mortgagee—Conversion—Maturity of Cause of Action—Absence of Demand and Refusal.—The purchase under foreclosure in the name of the mortgagee did not constitute an appropriation of the property to his own use, nor force a maturity of the agreement to pay the beneficial owner out of any sums paid on the mortgage, in the absence of any demand and refusal to make a declaration of trust, or to convey to the beneficial owner his interest in the property.</p> <p>Id.—Action befobb Maturity of Obligation—Res Ad judicata—General Judgment.—An action brought before the maturity of the obligation to pay money upon which the action is based, is no bar to any subsequent action or proceeding by the plaintiff; and his rights cannot be prejudiced by a general judgment for the defendant in such action.</p> <p>Id.—Election of Remedy.—The beneficial owner of the interest in the mortgage may elect to await a change of the property into money, and then collect his proportionate share o