1. The parties having made the contract in the form of an absolute sale, as to third persons, they must be held bound by it in that form, and their relations to it fixed by the paper as it reads, so far as those third persons are concerned; and parol evidence at common law cannot be admitted to show that a writing, absolute in its terms, is a mortgage. (6 Hill, N.Y. 220; 1 Hill, S.C. Rep. 387; 6 Har. & Johns. 128; 8 Conn. 117-122; Flint v. Sheldon , 13 Mass. 449; Id. 454; 3 Phil. on Ev. note 961, and cases cited; 12 Wend. 64; Jewett v. Reed, 5 Greenl. 96; 2 Shepley, 89; 12 Smedes and Marsh. 614.)
2. Because the reservation of right to redeem, orally made, is a secret trust, and makes fraudulent and void quoad creditors the contract which on its face purports to be absolute. (5 Serg. & Rawle, 278; 12 Id. 278; 7 Watts, 434; 3 Vermont R. 565; 1 Am. Ld. Cases, p. 82; 2 Vermont R. 555; 3 Dana, 134; 4 Devereux, 50; Colburn v. Pickering , 3 N.H. 415; 4 Devereux, 309; Paul v. Crocker , 8 N.H. 288; 4 Devereux, 176; Smith v. Lowell , 6 N.H. 67; 10 Devereux, 150; Winkley v. Hill, 9 New Hamp. 31; 9 Johns. 338; Gregory v. Perkins, 4 Dev. 54; Rea v. Alexander, 5 Iredell, 644; 1 Scam. 296; 3 Gilman, 464; 7 Dana, 262; Toby v. Reed , 9 Conn. 225; 14 N.H. 61; 7 Watts & Sergt. 227; Holcomb v. Ray, 1 Ired. 340.)
3. Because the property was subject to levy, even if the bill were a mortgage in terms; the levy must be upon the corpus of the property; and, therefore, there can be no suit by replevin against the officer until the sale of the defendant's interest in the property. (Fugate v. Clarkson, 2 B. Mon. 41.)
4. There was no such possession given, as the law requires to change the title. (Wordall v. Smith, 1 Campb. 332; Sands v. Codwise, 4 Johns. 588.)
5. Upon the facts, as a necessary conclusion of law, the Court must pronounce the deed fraudulent and void. (9 Johns. 337; 8 New Hamp. 288; 13 Johns. 243; 7 Cowen, 301; 2 T. R. 587; 2 Wend. 447; Archer v. Hubbell, 4 Wend. 514; Bacon v. Stetson, 7 Cowen, 735.)
6. This transaction was not a mortgage but an assignment by an insolvent, and is within the inhibition in the insolvent laws of California. (See Comp. L. p. 314.)
7. The charge of the Court was right as given; indeed it was not broad enough. This involves a construction of the Act concerning fraudulent conveyances. (See Comp. L. p. 201, secs. 15-17; 1 Kent's Com. 462; Wormley v. De Mattes, 1 Burr, 467; Lingham v. Briggs, 1 Bos. & Pul. 87; 3 Cowen R. p. 189; Tuynne's Case, 3 Coke R. 80; Edwards v. Harbin, 2 T. R. 587; Hamilton v. Russell, 1 Cranch. 309; Sturtevant v. Ballard, 9 Johns. 339; Hildreth v. Sands, 2 Johns. Ch. C. 46; Dana v. Cope, 4 Binney, 258; Fitzhugh v. Anderson, 2 Hen. & Munf. 302; Alexander v. Denale , 2 Munf. 341; Barron v. Paxten, 5 Johns. 258; 1 Powell on Mortg. pp. 3, 4 and 29, 2d chap.; Clew v. Woods, 5 Serg. & Raw. 278; Ryall v. Rolla, 1 Atk. 165, 185; 3 Bulstrade, 17; Salk. 113; Dyer, 20, 203; 1 Vesey, 252; Wilson v. Day, 2 Burr, 827; Manton v. Moore, 7 T. R. 63; 4 Burr, supra .)
8. Supposing that all these objections are of no avail, it still remains obvious that where no time is specified in a statute for the performance of an act, a reasonable time is the period intended; and where there is no disputeabout the facts, this is a question of law. (Gilbert v. Moody, 17 Wend. 354.)
9. Parol evidence is not admissible, to show that the recited consideration in a deed is not the true one. (Hildreth v. Sands, 2 Johns. Ch. 43; 2 Vesey, 628; Peacock v. Monk, 1 Vesey, 628; Wells v. Baldwin, 18 Johns. 47; Schermerhorn v. Vanderheyden, 1 Johns. 129; Maigley v. Hawer, 7 Johns. 342; Jackson v. De Lancey, 4 Cowen, 342; 5 J. J. Marshall, 141; 5 Cowen, 175; 4 J. J. Marshall, 431; 4 Hawks, 24.)
We beg to refer the Court to the case of Fitzgerald et al. v. Gorham, 4th vol. Cal. R. 289, in which the chief ground relied upon by us is fully sustained by the concurrent opinion of Justices Heydenfeldt and Murray. This opinion sustains the view of the law taken by Justice Bronson in the case of Griswold v. Sheldon, 4 Comstock, 582, and shows conclusively that the question is res adjudicata in this State.
The Court delivered an opinion in this cause in January term, but a rehearing being granted, the case was reserved till April term, when the judgment first rendered was affirmed.
JUDGES: The first opinion of the Courtwas delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray and Mr. Justice Terry concurring.
OPINION
HEYDENFELDT, Judge
On the rehearing, the opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
A re-argument was had in this case, upon a suggestion that advances had been made by Chenery to Hutchinson, after the delivery of the property in question.
If the relation of the parties had been that of bailor and bailee, or pledgor and pledgee, then there would be no doubt but the plaintiff might assert his claim for these advances, thus made upon the property in his possession. There is no evidence however that the original contract was ever abandoned. In fact, it appears from the testimony of Hutchinson that these same advances were contemplated and agreed on at the time of the original sale or mortgage. Under these circumstances the contracts must be regarded as an entirety, and however honest the intentions of the parties, the law from motives of public policy having declared the contract void, all subsequent acts under it must relate to its inception, and are alike tainted with fraud. We are disposed to regard this as a hard case, but do not see how the consequences can be avoided, as any other rule would enable a party to cure a fraudulent conveyance by subsequent payments or advancements made in good faith.
The whole contract is indivisible, and must stand upon the legality or bona fides of its inception. The judgment heretofore rendered is affirmed.