Hunt v. Swyney

Citations

• 4 Cal. Unrep. 108
• 33 P. 854
• 1893 Cal. LEXIS 1047

Syllabus

<p>Evidence.—S.’s Clerk, Y„ Took an Assignment of Mortgage from him, foreclosed it, and took the property in his own name. S. having died, Y. contended, as against his widow, that he had bought the mortgage, and foreclosed it for himself. The widow asserted that she had bought it from her husband, and had it assigned to Y. for foreclosure. On direct examination, Mrs. S. was asked whether at the time in question Y. was her agent for collecting rents. Y.’s accounts were then put in evidence, showing large credits for rents collected for her, and charges for the notary’s fee on the assignment of the mortgage, for taxes on the same, and expenses of foreclosure and sale. Held, that the question was proper as an introduction of the accounts.</p> <p>Witness.—Where a ■ Witness Responsively Answers a question in the affirmative, and then proceeds to state other irresponsive matters, a motion to strike out the whole answer is rightly denied.</p> <p>Resulting Trust.—Y., Who had Been the Clerk of S., Deceased, and Mrs. S.’s rent collector, took an assignment of mortgage from S., foreclosed it, and took title to the land in his own name. Mrs. S. thereafter claimed the land as having bought the mortgage from her husband, and had it assigned to Y. to foreclose. Y. maintained that he had bought and foreclosed the mortgage for himself. The record of the foreclosure case showed that Y., cross-examined, had admitted his agency for Mrs. S. in the matter, and that the price of the mortgage was applied on a debt due from S. to his wife. Held, that the court was justified in finding him a trustee, who could have no possession adverse to Mrs. S.</p>