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Taylor v. McClain

Supreme Court of California
Jun 30, 1882
60 Cal. 651 (Cal. 1882)


         Appeal from a judgment for the plaintiff in the Superior Court of Los Angeles County. Howard, J.


         This action was instituted January 27, 1880, more than five years after the muturity of McClain's demand. Appellant's cause of action on this claim was certainly barred when the complaint was filed; McClain therefore could not, when this action was instituted, have sued the Taylors on this demand, nor can they now sue him. A deed absolute on its face, but intended as a mortgage, conveys the legal title. (Hughes v. Davis , 40 Cal. 117; Espinosa v. Gregory, id 58; Davenport v. Turpin , 43 id. 604; Pico v. Gallardo , 52 id. 206.) In such cases therights of mortgagor and mortgagee are reciprocal, and when the debt is barred the right to redeem is also barred. (Grattan v. Wiggins , 23 Cal. 16; Cunningham v. Hawkins , 24 id. 403; Arrington v. Liscon , 34 id. 365; Espinoza v. Gregory, supra. ) Where a general finding and one which is special conflict, the latter will control. (Hidden v. Jordan , 28 Cal. 301.)

          Smith & Brown, and A. W. Hutton, and Bicknell & White, for Appellant.

          Barclay & Wilson and Brunson & Wells, for Respondents.

         As to defendant's second point, the plaintiff's cause of action is barred by the Statute of Limitations, Section 2903, C. C., provides that " Every person having an interest in property subject to a lien, has a right to redeem it from the lien at any time after the claim is due, and before his right of redemption is foreclosed. Again, the facts constituting plaintiff's cause of action were not discovered until the latter part of 1879, and within a few weeks of the commencement of this action. And plaintiffs are within the provisions of Section 338, C. C. P., subdivision iv.

         JUDGES: Ross, J. McKinstry, McKee, and Sharpstein, JJ., concurred.


          ROSS, Judge

         In Bank. We are of opinion that the judgment of the Court below is erroneous. The record shows that the instrument in question, though in form a deed absolute, was nevertheless executed to the defendant McClain as security for certain indebtedness of the plaintiffs assumed by him. It was therefore in legal effect a mortgage. The defendant paid the amount, and thereupon plaintiffs became indebted to him in the amount so paid. This indebtedness, for the security of which the instrument in question was given, arose and became due more than four years before the commencement of the action. When it became due, plaintiffs and defendant enjoyed reciprocal rights--plaintiffs the right to redeem the property given as security, and the defendant the right to demand the debt. (Gratton v. Wiggins , 23 Cal. 16; Cunningham v. Hawkins , 24 id. 403; and other cases in this Court.)

         More than four years having elapsed from the maturity of the debt, defendant's cause of action therefore became subject to a plea of the Statute of Limitations, as did also the plaintiffs' right to redeem.

         Viewed in the most favorable light for the plaintiffs, the action is one to redeem, to which the defendant pleaded, among other defenses, the Statute of Limitations. This defense must be sustained, regardless of other points made.

         Judgment and order reversed and cause remanded for a new trial.

Summaries of

Taylor v. McClain

Supreme Court of California
Jun 30, 1882
60 Cal. 651 (Cal. 1882)
Case details for

Taylor v. McClain

Case Details


Court:Supreme Court of California

Date published: Jun 30, 1882


60 Cal. 651 (Cal. 1882)

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