In the case at bar there was a written promise to pay by the respondent, upon which suit could have been maintained by appellant; and all of the authorities say, that if the debt survives, as in this case is conclusively shown, the transaction must be held to be a mortgage. (See Glover v. Payn, 19 Wend. 519, and nearly all the cases cited by respondent; Polhemus v. Treiner , 30 Cal. 685.)
The object of the appellant in making the transaction in this manner was to save the expense of foreclosure, and he did accomplish that very purpose by selling the lands himself. Now, with the moneys in his pocket, he repudiates his contract. The appellant here stands towards respondent, with reference to the trust, in the position that a Sheriff selling under a foreclosure would occupy, and must pay over the moneys as he received them.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
It may well be doubted if the testimony of Judge Sawyer was needed for the purpose of explaining the true character of the transaction; but be that as it may, 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. (Pierce v. Robinson , 13 Cal. 116; Johnson v. Sherman , 15 Cal. 291; Cunningham v. Hawkins , 27 Cal. 603; Hopper v. Jones , 29 Cal. 19.) This case is not distinguishable from those cited. It was competent, if necessary, to prove by parol that the deed and agreement were parts of the same transaction, and that the transaction, as a whole, amounted to and was intended to be a mortgage.
The money having been received in a fiduciary capacity by the defendant, it was not error to give the plaintiff a judgment payable in coin.
Judgment and order affirmed.