Spect v. Spect

Citations

• 88 Cal. 437
• 13 L.R.A. 137
• 26 P. 203
• 1891 Cal. LEXIS 710

Syllabus

<p>Findings—Failure to Find upon Affirmative Defense—Insufficient Reasons of Trial Court — Presumption upon Appeal from Judgment.—Where the trial court gives as its reason for not making findings upon material issues presented by an affirmative defense that such findings were immaterial, it will be presumed on appeal from the judgment that evidence was introduced at the trial sufficient to support the allegations of the answer, and the failure to find thereon is ground for reversal of the judgment.</p> <p>Ejectment — Equitable Defense — Mortgagee in Possession.—In an action of ejectment by the grantee of a mortgagor against a mortgagee in possession, an answer alleging the mortgage, and showing that possession was taken under it by consent of the mortgagor, and that the mortgage debt remains unpaid, sets forth an equitable defense, which, if sustained by the proofs, is sufficient to defeat the action.</p> <p>Id.—Unpaid Debt Barred by Statute. ■—A mortgagor who has placed his mortgagee in possession of the mortgaged premises cannot maintain ejectment against him while the debt for which the mortgage was given remains unsatisfied, even though an action by the mortgagee for the recovery of the debt is barred by the statute of-limitations.</p> <p>Mortgage — Possession of Mortgagee — Parol Agreement — Special Security. — The mortgagor may at any time give possession to the mortgagee by parol agreement, and such possession becomes a special additional security for the debt, not dependent upon the right of foreclosure, but depending solely on the existence of the debt.</p>