Davies v. Patton

*714 THE COURT. This is an appeal from an action to foreclose a mortgage. It appears that the parties to this action had entered into an agreement for the sale and purchase of a certain piece of real property in Alameda County for the sum of six thousand dollars; that the defendants and appellants paid on account thereof one thousand dollars, and went into possession. In payment of the balance they executed two promissory notes, one for three thousand dollars secured by a first mortgage upon the property purchased, and the other for two thousand dollars secured by a second mortgage. The first mortgage, according to the understanding between the parties to this appeal, was to be owned and held by a certain bank in Oakland, and the second mortgage was to be owned and held by the plaintiff. When this suit was commenced, the appellants learned that the bank in fact was not the owner of the mortgage executed in its name, but held the same for the plaintiff, who in fact had always been the owner of both encumbrances. The appellants claimed in the trial court, and now urge here, that the making of the deed of conveyance and the execution of the two mortgages constituted one transaction, and that the plaintiff in taking the first mortgage in the name of the bank, when in fact it belonged to her, deceived and defrauded them, in consequence of which the plaintiff cannot avail herself of the equitable arm of the court for the foreclosure of the second mortgage—the one concerned in this suit. Prom the evidence in the case it is clear that the plaintiff was prompted by no. oppressive or wrongful intent in allowing the appellants to suppose that they were dealing with the bank in question in the matter of the first mortgage, and probably conducted that part of the transaction in the manner indicated solely for the purpose of securing prompt payment of that part of the appellants’ obligation. It is quite evident, too, that the appellants had no serious objection to the plaintiff owning the first mortgage, for they in fact, according to the evidence introduced by the plaintiff, had requested her to take a mortgage for the full amount of the unpaid purchase price of the property. But aside from all of this, it appears that the appellants were and are in possession of the property, they were not damaged by the concealment, they attempted no rescission of the transaction or of any part of it, have not offered to return the property, but appear to think they may *715 retain it and repudiate any obligation under their mortgages. Such a position cannot be given judicial countenance. (6 Cyc. 314; 35 Cyc. 146; 20 Cyc. 92; California Steam Nav. Co. v. Wright, 8 Cal. 585, 592.) In our opinion the appeal is entirely devoid of merit. The judgment and order are affirmed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 16,1917.