This is an action to recover the possession of certain land, the title to which, on the first Monday in May, 1860, was in one B. C. Turman. Said Turman being at the time the owner in fee, by a deed in due form, absolute on its face, bearing date the 25th of July, 1860, conveyed said land to the defendant, Lodge, who is in possession, claiming title under said deed. Subsequently, on the 4th of August, 1865, said Turman, in due form, executed and delivered a second conveyance of the same land to the plaintiff Jackson, under which deed he claims to recover in this action. On the 25th of July, 1860, said plaintiff, Jackson, jointly with said Turman and one, Waggle, executed a promissory note for four hundred dollars, in favor of defendant Lodge. After the maturity of said note, defendant, Lodge, brought suit against plaintiff, Jackson, and his co-makers, Turman and Waggle, to recover the amount due on said note, in which action Turman allowed judgment to go by default, but Jackson and Waggle answered, admitting the execution of the note, and setting up as a defense that they executed the note for the accommodation of Turman, without any consideration moving to them; that shortly after the making of said note, on or about the 6th of August, 1860, in order to release said
But the question now is, whether the purpose and character of the conveyance is not res adjudicata, which cannot be again litigated between the parties. And upon this point we have no doubt. The only material issue in the former trial was raised by the answer and replication, and that was as to the purpose of the conveyance. The fact of making the instrument was admitted. The purpose averred on one side, and denied on the other, was, that it was made to the extent of five hundred dollars in payment and satisfaction of the note, and the contest was whether the purpose was to pay or secure the note, and the issue was found for payment, and judgment accordingly entered on the finding. The purpose and character of the instrument was, therefore, directly in issue and determined within the rule as laid down in its most restricted sense, as in the cases of Betts v. Starr, 5 Conn. 552, and King v. Chase, 15 N. H. 15, to say nothing of the rule somewhat more liberally applied, perhaps, in numerous other cases, among which are Chase v. Walker, 26 Maine, 558; Perkins v. Walker, 19 Vt. 147; Adams v. Barnes, 17 Mass. 367; Bell v. Raymond, 18 Conn. 95; Doty v. Brown, 4 Comst. 73; Castle v. Noyes, 14 N. Y. 330; Davis v. Talcott, 12 N. Y. 187; Gardner v. Buckbee, 3 Cow. 121. It is clearly
The matter of estoppel was properly in evidence; for the defendant, upon the case made by the complaint, was not called upon, and had no opportunity to plead it. The plaintiff did not set out his title. It was only developed in the evidence, and, therefore, could only be met by counter evidence. (Young v. Rummell, 2 Hill, 481; Flandreau v. Downey, 23 Cal. 358, and the cases just cited to the other point; also, 2 Smith’s Lead. Cases, 5th Am. Ed. 682.)
It can make no difference that Turman would not have been estopped. Turman conveyed just as much, and no more, just as good title and no better, to Jackson, at the time he made the conveyance as he would if the conveyance had been made before the institution of the suit of Lodge v. Jackson et al. Had the conveyance been made before, Jackson would have had precisely the same title that he now has, yet no one would, in that case, have claimed that he would not be estopped by the adjudication, provided the matter was directly in issue. The question now is, not what title Jackson took by the conveyance, but whether he is concluded by the former adjudication of the same matter, in a suit to which he and Lodge were parties, in which he was directly interested in determining the character of the conveyance, and in which it was found and adjudged in his favor, that his grantor had already conveyed the land to Lodge. The benefits of that adjudication he has fully enjoyed. If he has taken a title which, however good it may be, he has once litigated and had adjudged, and thereby estopped himself from further litigating, he did it with full knowledge of the facts, and he cannot complain. At all events he is concluded.
Other findings which would support the judgment in this case must necessarily be inconsistent with the matter before
The judgment and order denying a new trial are, therefore, on either ground, erroneous, and must be reversed.
The District Court refused to exclude the parol evidence introduced to show that the deed from Turman to Lodge, absolute on its face, was intended as a mortgage. We had regarded the rule as settled in this State in favor of the admissibility of such evidence, and should only have deemed it necessary to refer to former decisions, but inasmuch as there is not now a unanimity of sentiment as to the admissibility of such testimony at law, we deem it proper to more fully review the authorities on the question.
“A conveyance of property, absolute in terms, if intended by the parties to be a security for debt, is a mortgage; and such intentions may be manifested either hy a written defeasance, executed simultaneously with the deed, or by the acts or parol declarations of the parties.” (Lane v. Shear, 1 Wend. 437, and cases cited.) It has long been settled, in many of the States, at least, Hew York among the number, that in equity for all, and at law for most, purposes, the title to the land is really and in fact in the mortgagor, and not the mortgagee; and in this State it is now well settled by a long and unbroken line of decisions, from McMillan v. Richards, 9 Cal. 411, down to the present time, that the mortgagee has no title or estate in the land, but only a lien for the security of the debt. (Naglee v. Macy, 9 Cal. 428; Haffley v. Maier., 13 Cal. 13; Johnson v. Sherman, 15 Cal. 293; Goodenow v. Ewer, 16 Cal. 461; Fogarty v. Sawyer, 17 Cal. 589; Bloodworth v. Lake, 33 Cal. 264; and numerous other cases might be cited).
In the statement of this doctrine, so far as our information extends, there has been no express or implied limitation in its application to any particular form of mortgage. Hor are we aware that in those other States, which recognize a deed absolute on its face, given for the purpose of securing a debt, as a mortgage, and regard the title for all purposes, except
There was nothing on the face of either instrument, taken by itself, or the two considered together, from which the real nature of the transaction could be ascertained, and the facts, to connect the two instruments, and show that the whole was intended as a mortgage to secure a loan of two hundred dollars, were shown by parol. The bond was not a condition avoiding the deed upon payment—not a defeasance in form or substance. It was the ordinary bond to convey a title, which was apparently in the obligor. It was such a bond as was in ordinary use in sales of land on credit, by which the vendor of land, actually owned by himself, was accustomed to obligate himself to convey to the vendee on payment of the purchase money. And it was only by parol evidence
“In England, as we have before stated, a mortgagee of a term out of possession is liable as assignee, because he is by the mortgage invested with the entire estate. In New York he is only liable when in possession, because until then he has a mere chattel interest, but is held liable after possession
Thus it is directly held that in this State no title in reality passes to the grantee, even by a conveyance absolute in form, and without any defeasance when the purpose is security; or, in other words, that all mortgages, whether in the usual form or absolute conveyances on their faces, stand upon the same footing in this respect, that neither conveys a title in fact. We know of nothing in this State in conflict with this decision; on the contrary, the doctrine has been rigidly adhered to in all sub sequent cases; as in Polhemus v. Trainer, 30 Cal. 687, and Gay v. Hamilton, 33 Cal. 688, in which the assignment was absolute on its face, but there was a separate counter agreement, not making the assignment void, but to reassign upon the payment of a certain sum of money, and requiring parol evidence to connect the transactions and show the object.
That an innocent purchaser for a valuable consideration from the apparent grantee in a conveyance, absolute on its face, in due form upon the records, although intended as a mortgage, without notice of its real character, would be protected, there can be no doubt. The parties who executed and placed upon the record such a deed would be estopped, as to such innocent purchaser, from, averring that the instrument is not such as it appears to be—such as their act represented it to be. But this, we apprehend, affords no sound argument for overthrowing the doctrine as now established in this State.
Taking this point as established, is it competent, under our system, in an action which would have been an action at law under the old system, to show by parol evidence that a deed, absolute on its face, was given as security, and is, - therefore, a mortgage ?
In blew York the decisions are uniform, we believe, in support of the admissibility of such evidence, till the case oWebb v. Rice, 6 Hill, 219. At all events, it was so held in
The later case of Hodges v. The Tenn. M. F. Ins. Co., 4 Seld. 416, was an action at law on a policy of insurance. There was nothing set up, either in the complaint, answer, or replication, upon which any affirmative equitable relief could be had in that action, nor was there any equitable defense set up, for the approval of the assignment upon fraudulent representations is a legal as well as equitable defense. The ease, as presented by the amended complaint, is simply this: Plaintiff sought to recover on the policy obtained by one Slamm, the owner of the land. Slamm conveyed the premises to plaintiff by deed absolute on its face, hut which plaintiff alleges was intended as a security, and assigned the policy as collateral security, which assignment defendants approved on the representation that the laud was mortgaged, and the assignment made as collateral, whereas the conveyance of land turns out to be absolute. How, the legal liability of the insurance company depends upon whether the deed, absolute on its face, was in fact a mortgage, and not—what it purports to be—an absolute conveyance. The only question is, whether, in an action strictly at law, it can be shown by parol evidence that the deed absolute on its face is intended for a mortgage, and the Court of Appeals holds that it can. The opinion does not state so clearly as it might the exact ground of the decision. It was not pretended that this is not an action at law, or that there is any issue other than one at law. But the Court say: “ The question, then, taking it most strongly against the plaintiff, is, whether in equity Slamm might have a bill to redeem
As the action was at law, and the Court did not overrule the case referred to, it must have gone upon the idea, that, as the party might formerly have had a bill in equity, and introduced parol evidence in such suit, and as the distinctions between law and equity are now abolished in practice, and any relief may be granted in any case, which the facts justify, the matters which might formerly be investigated in a suit in equity may now, also, be inquired into in a suit at law. That is to say, that rules of evidence and practice no longer depend upon the forum in which the question arises. There could be no other ground taken without directly overruling Webb v. Rice, which the Court did not profess to do. Yet it was not pretended that this was a suit in equity, or that there was any one equitable issue in the case. The dissenting opinion, also, assumed it to be a question arising at law, for it held the question to be governed by Webb v. Rice, and the dissent went on that ground. The view which it is here suggested the Court must have taken with reference to the applicability of the same rules of evidence to actions at law, and in equity in New York, since the adoption of the code, is expressly stated and adopted in the still later case of Despard v. Walbridge, 15 N. Y. 374. This was an action at law against a sub-tenant to recover rent. The plaintiff claimed under an assignment of the term of the first lessee, absolute on its face. And the question was, whether parol evidence could be introduced to show that the assignment was a security and the debt had been paid. The Court say:
“ The assignment to the plaintiff being absolute in its terms, it is said that parol evidence was inadmissible to show that it was intended as security merely; and the case of Webb v. Rice, 6 Hill, 219, is cited in support of this position.
The matter was set up in the answer in this case, it is true, but it was to show that the title was not in the plaintiff. But it was a legal action, and the Court say: “ That in order that it should now be made available in legal actions, as provided by the code, the evidence to establish it must be admitted in that class of actions.” (See, also, Smith v. Beattie, 31 N. Y. 544. This case may, however, be regarded as a suit in equity.) Thus it is now settled in Kew York, that, under the code, whatever the rule might have been before, parol evidence is admissible in actions at laiv as well as in equity, to show that a deed, absolute on its face, is, in fact, a mortgage.
In this State, the Court, in Pierce v. Robinson, 13 Cal. 117, upon an elaborate discussion of the question, with a view to “ place the doctrine of this Court in harmony with the
It is true that Pierce v. Robinson is referred to as settling the question. But the doctrine is held to he applicable to this case, which, as we have before stated, was regarded for the purpose of the decision, as an action at law. The question arose upon an issue at law—upon the cause of action at law. We regard the case, therefore, as directly holding, that such evidence in this State, and under our system of practice, is admissible at law as well as in equity. In Cunningham v. Hawkins, 27 Cal. 605, an action to recover possession of a mining claim, the question was directly presented and decided on the authority of Pierce v. Robinson, and Johnson v. Sherman, and upon further reasons there stated. We there said: “It is now settled in this State that parol evidence is admissible to show that a deed, absolute on its face, was intended to be a mortgage. (Pierce v. Robinson, 13 Cal. 116; Johnson v. Sherman, 15 Cal. 291.) Uor can the rule be confined to cases that formerly were cognizable in equity alone. There is but one form of action in this State, and the same rules of evidence must be applied alike to all cases. It may be that formerly the rule prevailed only in cases of equity. But, however that may be, there is no distinction in this State.
“Section two hundred sixty of the Practice Act provides that ' a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale.’ If the rule contended for by the respondent prevailed, this provision of the statute would be nugatory, for the reason that when the mortgage is, in its terms—in form—an absolute conveyance, the mortgagor would be prohibited from showing the real character of the transaction. The position contended for by the respondent would resolve the question into one of pleading rather than a question as to the competency of evidence. But there is no equitable title to set up. The plaintiff, if he has any title at all, has
Upon the same point we held the same way in Hopper v. Jones, 29 Cal. 18. The same principle must have been recognized in Polhemus v. Trainer, 30 Cal. 687, for, although there was a written agreement to reassign upon the payment of a certain sum, it was a separate instrument, and required parol testimony to connect the two and show the object. Again, the same point was directly presented and decided the same way in Gay v. Hamilton, 33 Cal. 690, where we again say: “ It is well settled in this State, that what appears upon the face of the papers to have been an absolute sale and conveyance, may be shown by parol evidence to have been intended as a mortgage.” Sears v. Dixon, 33 Cal. 332, also recognizes the same doctrine.
The last six cases had the concurrence of all the Justices. Thus, for nearly nine years, the doctrine has been rigidly adhered to without a dissenting voice. We can perceive no good reason for overturning all these decisions now, and again unsettling the law upon a highly important practical question, which we had regarded as finally set at rest. Besides, although it is apparently but a rule of evidence, it may also have become a rule of property. Parties may have acted upon the idea, that deeds absolute in form could be shown to be mortgages by parol evidence, and placed themselves in a position where their property may be lost, or rights jeopardized. The remarks of Mr. Justice Selden, in Bissell v. Mi. S. N. Ind. R. Co. are worthy of consideration in this connection. He says: “ If questions which have been over and over again considered, and over and over again decided, are to be treated as still unsettled, then are we without any stable foundation of law or justice. The evils attendant upon setting legal principles afloat upon a sea of uncertainty and
But we believe it to be now conceded that the rule in favor of the admissibility of parol evidence in equity is universally established, here and elsewhere, and this being so, if we never had yet decided the question, we should have no hesitation under our system of practice and statutory provisions in establishing the same rule in proceedings which would formerly have been at law.
The revised statutes of New York contain the following provision: “Yo action of ejectment shall hereafter be maintained by a mortgagee or his assigns or representatives for the recovery of the mortgaged premises.” (2 Rev. Stats. N. Y., 312, Sec. 57.) Under this provision it was held by the Court of Appeals, that the plaintiff could not recover in ejectment upon the following state of facts: One Green purchased the land in dispute from the State, partly on credit, and received from the proper officer the prescribed certificate of purchase, showing the balance due, etc. He, afterwards, assigned the certificate' to one, Stanford, who subsequently assigned it to the plaintiff, Murray, “ authorizing and empowering him to take and receive a deed for the premises for his own use and benefit, but adding to the assignment that it was made ' to secure the payment of two hundred dollars,’ etc.” Stanford remained in possession, and the defendant entered upon title subsequently derived from Stanford. Afterwards the plaintiff paid the balance of the purchase money, and received a patent from the State, absolute on its face. It was held, however, that he was only a mortgagee; that from the fact of his taking in form an absolute title from the State—a third party—he was in no better position than he was with his assignment of the certificate of sale as a security from a party in whom the legal title had never vested; and that the patentee was within the foregoing pro
Yow, as against those claiming under Stanford, who, himself, never had the legal title, if there was in fact no title conveyed by the patent of the State to Walker, sufficient to enable him to maintain ejectment, it would be difficult to conceive of a case where a conveyance made for the purpose of security, would vest a title sufficient to justify a recovery under the statute in question. The fact that there is a defeasance in writing in the same, or a separate instrument, is not made the test. For the statute, as construed by the Courts, embraces “ every description of mortgage which could previously have been made the foundation of an action of ejectment;” and it will not be pretended that a mortgage in the form of an absolute conveyance could not have been made the foundation of such action—or that such an instrument is in fact a mortgage.
Our Practice Act is still more specific and comprehensive than the statute of Yew York. Section two hundred sixty, as we have before seen, is as follows:' “A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale.” This provision was adopted in full view of the fact, that mortgages were in common use, and recognized by the law of the land—a part of the general municipal law—whether enforced in a Court of law, or a Court of equity, in various forms—some with a condition of defeasance in the instrument itself; others, in a separate instrument; and still others without any defeasance in writing at all—and the provision
The statute says, no recovery of possession shall be had upon a mortgage, “whatever its terms.” The statutory test of the right to recover is, whether the instrument is, in fact, a mortgage, without regard to its form, and not whether the object of the instrument is disclosed by the writing, or any other writing.
In Fogarty v. Sawyer, Mr. Chief Justice Field says: “We * * * are clear that the language, 'whatever its terms,’ was only intended to control the terms of grant, bargain, and sale generally employed in mortgages. The common form of such instruments in use in this State is that of an absolute conveyance, with a condition underwritten that it is executed as security, and shall become inoperative and void upon payment of the debt; and the statute is directed to the language of alienation and transfer, declaring that the instrument, whatever terms it may use, shall not be deemed a conveyance so as to enable the owner to recover possession without foreclosure and sale. As a result flowing from the statute, no authority can be derived from the mortgage alone to take possession, even though terms are used which in other instruments would convey both title and possession.” (17 Cal. 593; see, also, Ib. 592.)
The provision under consideration, prohibiting a recovery, has reference to an action at law, and it necessarily assumes that the fact which shall defeat the recovery may be shown in the very action in which the recovery is sought. If it cannot be thus shown, then as to a large number of the cases embraced within the provisions of the Act the purpose of the Legislature is defeated. But Courts of equity exercise no arbitrary powers. They simply administer, in forms peculiarly their
We can conceive of but one inconvenience likely to result from the doctrine here maintained, and that arises from the different terms prescribed by the Statute of Limitations for barring an action to foreclose the mortgage and an action to recover the land. A mortgagee in possession, either wrongfully or by consent, would be barred of his action to foreclose in four years after his money becomes due, while the action to recover the land by the mortgagor would not be barred till five years. A mortgagee in possession might thus be lulled by his possession, under a deed absolute on its face, into a false security, and allow the bar to attach upon his action to foreclose, while the right of action to recover possession would still remain. But if so, this, like all other-cases barred by the statute, would be the result of negligence, design, or inattention to the operation of the law. Besides, if this be conceded to be an inconvenience, the same incon
We all know, as a matter of fact, that conveyances and assignments, absolute on their face, for purposes of security, are very common; and that such have been almost time out of mind regarded and enforced, in Courts of equity, at least, as mortgages. The principle is as well known, and as thoroughly imbedded in the minds of the people as any other rule of property. Then why, since this form of security is common in the transactions of business, jeopardize the rights of those who are, to a great extent, at the mercy of the creditor, and are compelled to adopt it by introducing, or reviving, if it before existed, an obsolete, arbitrary distinction in the application of a rule of evidence, based upon the fact that certain remedies were once pursued in different tribunals, when, if it ever had any principle to support it, there is no longer any sound reason upon which it can rest?
Both upon principle and authority, therefore, we think parol evidence admissible in this State, at law as in equity, to show that a deed, absolute on its face, was given as security for money, and is, in fact, a mortgage, and we affirm the former decisions on that point.
- We will add here that the authorities from Massachusetts and such of the Hew England and other States as have followed Massachusetts, are in a great measure inapplicable to the question, as presented in this State, for the reason that the whole doctrine relating to mortgages in those States is different. There the old common law doctrine, but slightly modified, still prevails, that a mortgage, even in the ordinary form, is a conditional conveyance of the land, which becomes absolute, at law, upon breach of condition—that it passes an estate in the land, and does not merely create a lien. A recovery of possession may be had on it. (Edwards v. Farmers’ F., M. and L. Co., 21 Wend. 490.) Of course, such a departure as we, following the lead of Hew York, have made from the old doctrine of mortgages, is attended by important consequences. The form of the decree approved in Perrine v. Dunn, 4 Johns. Ch. 140, to our minds, affords no argument against the position we have taken; for the decree in that case was upon a mortgage eo nomine,, (see same case, 3 Johns. Ch. 508, for statement of the facts,) and is as applicable to one form of a mortgage as to another. But the decision was made when strict foreclosures were authorized, and before the doctrine as to the character of mortgages which now
The judgment and order denying a new trial must 'be reversed, and a new trial had, and it is so ordered.
By the Court, Sawyer, C. J.:
Prehearing denied. Let the foregoing order be entered.