Powell v. Patison

Citations

• 100 Cal. 234
• 34 P. 676
• 1893 Cal. LEXIS 775

Syllabus

<p>Foreclosure of Deed of Trust—Issue as to Mortgage Security—. Omitted Finding—Appeal.—In an action to foreclose a deed of trust, where an appeal is taken from a judgment refusing to decree a foreclosure, and it appears that the trial court made no finding upon the issue raised by the pleadings^ as to whether tbfe deed was given and intended as a mortgage, as averred in the complaint, and denied in the answer, and the instrument is not brought up by the record or set out in the pleadings, the question as to whether it was an absolute deed of trust or a deed of trust in the nature of a mortgage cannot be determined by the appellate court, and the judgment must be reversed for failure of the trial court to find upon that issue.</p> <p>Id.—Nature of Absolute Deed of Trust.—An absolute deed of trust is a conveyance of the property to a trustee for the purpose of selling it to pay debts, the effect of which is to pass an unconditional and indefeasible title to the trustee for the purposes of the trust.</p> <p>Id.—Deed of Trust in Nature of Mortgage—.Defeasance—Power of Sale. —A deed of trust in the nature of a mortgage is a conveyance of the property to the trustee merely as collateral security for the payment of a debt, upon an express condition of defeasance, with power to sell the property and pay the debt in case of a default by the trustor.</p>