Smith v. 49 & 56 Quartz Mining Co.

Citations

• 14 Cal. 242

Syllabus

<p>Whebe, from an instrument transferring shares of stock as security for a note, and from other circumstances, the transaction is clearly a loan, a clause of foreclosure on non-payment, or a provision that the mortgagee may take the property for the debt, does not make the instrument any the less a mortgage.</p> <p>The clause, in such instrument, “ I hereby sell, transfer, and set over, - - - all my right, title, and interest, to the said - - - stock, provided I fail to pay - - - the above sum - - - on the day the same becomes due and payable,” does not make it a conditional sale, there being no money given, or agreed to be given, for the stock, and no agreement to take it at any price, at the time of contract.</p> <p>A mortgagee of stock, in such case, does not get an absolute title to the stock, by the mere default of payment of the mortgage debt.</p> <p>Where stock is transferred to secure a debt, and is still in the hands of the transferee, and plaintiff avers that the stock is worth more than the' debt, and that defendant has received, from dividends, more than enough to pay it, equity has jurisdiction to compel an account, prevent a transfer, and direct a retransfer and delivery of the stock.</p> <p>As to whether the transfer of stock in this case was fraudulent as against creditors, stated.</p>