Murdock v. Clarke

Citations

• 3 Cal. Unrep. 265
• 24 P. 272
• 1890 Cal. LEXIS 1164

Syllabus

<p>Mortgages.—A Conveyance of Land to Secure the Payment of money, though the grantee is put in possession under an agreement for an accounting for the rents and profits, is only a mortgage, and does not pass the legal title.</p> <p>Mortgage — Mortgagee in Possession — Accounting. — By an agreement between a mortgagor- and mortgagees, the latter were to have the sole right to the possession of the land mortgaged, accounting for the rents and profits, and were to select a person to manage the property. At an accounting against the mortgagees, the latter testified that they were to send a man to take possession, in order to take care of the personal property security, and that everything was to be run in their name. They also spoke of the man selected, both in their testimony and in the pleadings, as their agent. Held, that for the purposes of possession and accounting, such person must be considered as the agent of the mortgagees only, although his selection was approved by the mortgagor, and his salary was paid as a part of the running expenses. In such case the mortgagees are held to the exercise of reasonable diligence in the management of the property mortgaged.</p> <p>Mortgage—Mortgagee in Possession—Accounting.—Where both the agent and the defendants kept their own cattle on the mortgaged land, along with the cattle of the mortgagor, the wrong done was satisfied by charging defendants with a proportion of the running expenses, and with the value of the use of the land.</p> <p>Mortgage — Mortgagee in Possession — Accounting.—1STothing was chargeable to defendants on account of horses which they sent to the land, and which were needed and used for farm work.</p> <p>Mortgage—Mortgagee in Possession—Accounting.—One of the notes given by the mortgagor providing for compound interest if not paid when due, the net receipts were properly applied first to the payment of the interest on such note.</p> <p>Mortgage — Mortgagee in Possession—Accounting.—Sums advanced to the