Low v. Henry

Citations

• 9 Cal. 538

Syllabus

<p>An attachment, issued before the issuance of the summons in the suit, is void, and the subsequent issuance of the summons cannot cure it.</p> <p>Per Burnett, J.—A deed and defeasance, to constitute a mortgage, must he between the same parties.</p> <p>Parol evidence is not admissible to show that a deed, absolute on its face, was intended as a mortgage, except in cases of fraud, accident, or mistake in the creation of the instrument itself.</p> <p>In the absence of a mutuality of obligation, it must appear by apt and express words in the instruments, that it was the intention of the parties that the transaction should amount to a mortgage.</p> <p>The judgment in an attachment-suit need not direct the sale of the property attached, as the law makes it the duty of the sheriff to sell it.</p>