Kyle v. Hamilton

Citations

• 6 Cal. Unrep. 893
• 68 P. 484
• 1902 Cal. LEXIS 886

Syllabus

<p>Mortgage—Deed as.—Where a Deed is Executed Contemporaneously with, a contract by the grantee to return the deed on the judgment of a debt by the grantor, the delivery of the deed is strong evidence that the contract was also delivered.</p> <p>Mortgage—Deed as.—A Deed, and Contract by the grantee to return the deed on the payment of a debt, were executed at the same time, and evidence that both instruments were delivered to H. for the parties entitled thereto was uncontradicted, and the agreement was shown to have been recognized by grantee prior to the suit. The contract was delivered by H. to the grantee, but the former testified that it was by mistake. Held, sufficient to show the delivery of the contract.</p> <p>Mortgage—Deed as.—Where a Deed, and Contract requiring the grantee to return the deed on the payment of a debt, are made at the same time, and the contract imposes no obligation on the grantor, and the delivery is not conditioned on his signing it, it is not invalid because his signature is not attached thereto.</p> <p>Mortgage Foreclosure.—An Allegation, in an Answer to a mortgage foreclosure suit, that the mortgage was annulled by a subsequent mortgage between the parties, is to be construed as an allegation that there was a novation of the new mortgage for the old.</p> <p>Mortgage—Novation.—Under Civil Code, Section 1530 et seq., in reference to novation, and defining it as the substitution of a new debt for an old, the execution and interchange of a deed and a contract to return the deed on the payment of a debt, intended to take the place of a mortgage securing the debt, is a novation of the mortgage.</p> <p>Mortgage—Consideration.—Under Civil Code, Section 1605, providing that any prejudice suffered by a promisee shall constitute a good consideration, the execution of a deed is sufficient consideration to support an agreement by the grantee to return the deed on the payment of a debt.</p> <p>Mortgage—Deed as Substitute for—Mistake.—Where a Deed,