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Gould v. Adams

Supreme Court of California
Aug 3, 1895
108 Cal. 365 (Cal. 1895)


         Department Two

         Hearing In Bank Denied.

         Appeal from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge.


         The decision upon the former appeal is not res adjudicata, there being uncontradicted testimony on the second trial which was not the same as that given on the first trial. (McLeran v. Benton , 73 Cal. 337; 2 Am. St. Rep. 814.) The mortgagee for purchase money knew that the deed had gone on record, and that plaintiff's mortgage had been taken on the strength of it, before he accepted the cash payment and took his mortgage for purchase money, and the acceptance of the money validated plaintiff's mortgage. (Verplank v. Sterry, 12 Johns. 536; 7 Am. Dec. 348; Duncan v. Hodges, 4 McCord, 239; 17 Am. Dec. 734; Civ. Code, sec. 1589.) The mortgage for purchase money waived any prior vendor's lien. (Gessner v. Palmateer , 89 Cal. 89; Baum v. Grigsby , 21 Cal. 172; 81 Am. Dec. 153; Johnson v. Nunnerly , 30 Ark. 153; Hunt v. Waterman , 12 Cal. 301; Avery v. Clark , 87 Cal. 619; 22 Am. St. Rep. 272; Cronister v. Cronister, 1 Watts. & S. 442; Shontz v. Brown , 27 Pa. St. 123; Bull v. Willard, 9 Barb. 641.) The amended answer and cross-complaint should have been stricken out, as defendant cannot be allowed after appeal to try the case on new issues. (Johnson v. Kirby , 65 Cal. 482; Heinlen v. Beans , 73 Cal. 240; Spanagel v. Reay , 47 Cal. 608, followed in Harney v. Corcoran , 60 Cal. 314; McPherson v. Weston , 85 Cal. 90; Hayden v. Hayden , 46 Cal. 333, 337; Bliss on Code Pleading, secs. 428, 430.)

         Richards & Carrier, and George H. Gould, for Appellant.

          H. H. Appel, F. R. Willis, and Houghton, Silent & Campbell, for Respondents.

         The decision on the former appeal was the law of the case. (Gould v. Wise , 97 Cal. 532.) The covenants in the contract of purchase being mutual and dependent, the title to the property, although the deed came wrongfully into the possession of the purchaser, did not pass to the purchaser without his having first complied with the conditions of the contract of purchase. (Hill v. Grigsby , 35 Cal. 656; Englander v. Rogers , 41 Cal. 420; Stockton Sav. etc. Soc. v. Hildreth , 53 Cal. 721; Ernst v. Cummings , 55 Cal. 179; Beem v. McKusick , 10 Cal. 538; Dyson v. Bradshaw , 23 Cal. 528; Demesney v. Gravelin , 56 Ill. 93; Skinner v. Baker , 79 Ill. 496; Hinman v. Booth, 21 Wend. 267; Abbott v. Alsdorf , 19 Mich. 157; Smith v. South Royalton Bank , 32 Vt. 341; 76 Am. Dec. 179; Robbins v. Magee , 76 Ind. 381; Blight v. Schenck , 10 Pa. St. 285; 51 Am. Dec. 478.) The vendor had an equitable lien created by an express executory contract, which was known to plaintiff, and which could not be extinguished without payment of the purchase price, and was not extinguished by the mortgage for the purchase money. (1 Pomeroy's Equity, 147; Chase v. Peck , 21 N.Y. 581; Dingley v. Bank etc ., 57 Cal. 470; Daggett v. Rankin , 31 Cal. 321, 328; Love v. Sierra Nevada etc. Co ., 32 Cal. 653; Racouillat v. Sansevain , 32 Cal. 377; Remington v. Higgins , 54 Cal. 623; Sparks v. Hess , 15 Cal. 193; Brewster v. Bours , 8 Cal. 502; Griffith v. Grogan , 12 Cal. 317; Higgins v. Wortell , 18 Cal. 333; Crary v. Bowers , 20 Cal. 88; Smith v. Owens , 21 Cal. 23; Welch v. Allington , 23 Cal. 323; Brown v. Olmsted , 50 Cal. 165; Carr v. Caldwell , 10 Cal. 380; 70 Am. Dec. 740; Swift v. Kraemer , 13 Cal. 530; 73 Am. Dec. 603; Barber v. Babel , 36 Cal. 23; Shinn v. McPherson , 58 Cal. 596; Burns v. Thayer , 101 Mass. 426; Smith v. Stanley , 37 Me. 13; 58 Am. Dec. 771; Jones on Mortgages, secs. 924, 925; Flanagan v. Cushman, 48 Tex. 245; Bunker v. Barron , 79 Me. 62; 1 Am. St. Rep. 284; Whittacre v. Fuller , 5 Minn. 508; Naltner v. Tappey , 55 Ind. 107; Walters v. Walters , 73 Ind. 425; Matzen v. Shaeffer , 65 Cal. 81; Gans v. Thieme , 93 N.Y. 232; Yaple v. Stephens, 36 Kan. 680; Bacon v. Goodnow , 59 N.H. 415; Jones on Mortgages, sec. 926; Carpenter v. Mitchell , 54 Ill. 126; Thompson v. Heffner, 11 Bush (Ky.), 353; Stricklin v. Cooper , 55 Miss. 624; Stratton v. Gold , 40 Miss. 778; Peters v. Clements, 46 Tex. 114; Masterson v. Cohen, 46 Tex. 520; Lusk v. Hopper, 3 Bush (Ky.), 179; McCaslin v. State , 44 Ind. 151; Bozeman v. Ivey , 49 Ala. 75; Warren v. Branch, 15 W.Va. 21; Dukes v. Turner, 44 Iowa 575; Brannan v. Mesick , 10 Cal. 95.)

         JUDGES: Vanclief, C. Searls, C., and Haynes, C., concurred. McFarland, J., Temple, J., Henshaw, J.


          VANCLIEF, Judge

         Action to foreclose a mortgage executed by defendant Adams to plaintiff's testatrix, in which John Wise was made a party defendant on the ground that he had a mortgage on the same land alleged to be subsequent and subject to that of plaintiff. Wise answered, and also filed a cross-complaint claiming that his mortgage was prior and superior to that of plaintiff and praying that it be foreclosed as such. On the first trial of the cause the plaintiff prevailed and the defendant appealed. This court reversed the judgment and remanded the cause for a new trial. (Gould v. Wise , 97 Cal. 532.) Upon the new trial the mortgage of defendant Wise was adjudged to be prior and superior to that of the plaintiff and ordered to be first satisfied from the proceeds of the foreclosure sale. From this judgment the plaintiff brings this appeal on the judgment-roll, containing a bill of exceptions as to matters of both law and fact.

         On the former appeal the judgment was reversed on a state of facts fully set forth in the opinion of the court by Mr. Justice Garoutte. On the new trial the lower court again found the same facts, and nothing inconsistent with nor in avoidance of them. If these findings of fact on the new trial are justified by the evidence, as I think they are, it follows that the former decision is the law of the case.

         Appellant complains that the court failed to find upon certain specified issues of fact, but, in view of the facts found, those issues were immaterial. A finding on each of them in favor of the plaintiff would not have necessitated [41 P. 409] any change in the judgment rendered.

         It is further contended that the court erred in denying plaintiff's motion to strike out defendant's answer on the alleged ground that the amended answer is inconsistent with the original answer, in that the latter avers, and the former denies, that the deed from Wise to Adams was delivered. But there is no such inconsistency. The amended answer does not deny the delivery of the deed from Wise to Adams, but merely denies that it was delivered at the time of the execution of the mortgage from Adams to plaintiff's testatrix; and this was the effect of the original answer and cross-complaint as construed on the former appeal. The principal ground upon which the first judgment was reversed was that the deed from Wise to Adams had not been delivered at the time the mortgage from Adams to Julia F. Gould was executed.

         On the law of the case as determined on the former appeal the judgment should be affirmed.

         For the reasons given in the foregoing opinion the judgment is affirmed.

Summaries of

Gould v. Adams

Supreme Court of California
Aug 3, 1895
108 Cal. 365 (Cal. 1895)
Case details for

Gould v. Adams

Case Details

Full title:FREDERICK GOULD, Executor, etc., Appellant, v. ASA ADAMS et al.…

Court:Supreme Court of California

Date published: Aug 3, 1895


108 Cal. 365 (Cal. 1895)
41 P. 408

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