Benham v. Rowe

2 Cal. 387

Opinion

Heydeneeldt, Justice,

delivered the opinion of the Court, in which Murray, Chief Justice, and Anderson, Justice, concurred.

Where a power of sale is contained in a mortgage, and under a sale by virtue of such power, the mortgagee becomes the purchaser, the equity of redemption still attaches to the property in favour of the mortgagor.

The Court below therefore treated this case properly as one in which the plaintiff ’a right to redeem was clear.

The errors complained of arise mainly upon the charges given and refused by the Court. The first three charges asked by the plaintiffs, were properly refused. The complainant does not charge the defendant Rowe with negligence or improper conduct in leasing the mortgaged premises. It requires him to account for the rent he actually received and no more. But even if he had been called on to answer a charge of that character, the instructions given by the Court were as favourable to the plaintiffs as the rules of law will admit.

The fourth charge was also properly refused; but the one given by the Court on the question embraced in it, was equally erroneous. The bill did not seek to set aside the sale made to House, and as Rowe had the power to sell, the sale must stand when the mortgagor does not complain of it.

As however the defendant Rowe did not affect the sale for money, but received instead an article of fluctuating value, he is clearly chargeable with the highest market value of the property sold, to be credited to the account of the plaintiff; and the Court erred in not so deciding.

The fifth instruction asked by the plaintiff, was also properly refused. It embraces a question which is entirely abstract, in reference to the facts of this case. It might arise hereafter between Field and the tenant, but can have no place in this decision.

The sixth instruction asked by the plaintiff, ought to have been given. Where a mortgagee takes possession of the mortgaged premises, his care and trouble are bestowed for the furtherance and protection of his own interests. He is not like a mere naked trustee, nor is his capacity that of an agent. He is, while in possession quasi, its owner. It is a charge which he has taken voluntarily upon himself, and for which he has no right to seek a compensation out of the mortgagor.

There is but one other error which it seems proper to notice. The Court decided that the defendants held the affirmative, and therefore gave them the opening and conclusion of the causes.

This was clearly wrong; the plaintiff, always in contemplation of law, has the affirmative, and has the right to open and conclude.

For the errors that have been pointed out, the judgment is reversed, and the cause remanded with costs.