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141 Cal. 335

74 P 999

Moss v. Odell

California Supreme Court

Decided December 19, 1903

California Supreme Court · decided 1903-12-19

<p>"Mortgage—Deed Absolute—Possession oe Mortgagee—Accounting —Compensation.—In an action by the mortgagor for an accounting and reconveyance of property conveyed to a mortgagee by deed absolute in form, intended as a mortgage, the mortgagee in possession is not entitled to compensation.</p> <p>Id.—Items oe Account—Moneys Received to Use oe Mortgagor-Moneys Disbursed—Statute oe Limitations.—Monéys received by the mortgagee in possession to the use of the mortgagor, as the owner of the equitable interest, were properly chargeable to the mortgagee; and the mortgagee should have been credited with moneys paid to the mortgagor and to his use. The statute of limitations as to the accounting only begins to run from the last item charged on either side.</p> <p>Id.—Payment oe Note oe Mortgagee to Mortgagor—Application oe Payments—Time oe Advances.—Payments made by the mortgagee to the mortgagor, without direction as to their specific application, are to be regarded as applied on a note of the mortgagee to the mortgagor which was due prior to the mortgage, and the advances by the mortgagee under the mortgage must be regarded as commencing only upon the satisfaction of such note.</p> <p>Id.—Delivery oe Paid Note More than Pour Tears after Maturity. —The subsequent delivery of the satisfied note to the mortgagee more than four years after its maturity is without significance, so far as treating it as discharged by payments of the mortgagee applied thereon is concerned.</p> <p>Id.—Rejection of Credits—Greater Error in Interest—Appellant not Injured—Affirmance oe Judgment.—Where the rejection of credits which should have been allowed to the mortgagee appellant were more than offset by an error in the interest account in favor of the mortgagee, so that the result of a correct statement of the account would show a less indebtedness on the mortgage than that allowed by the court, the appellant is not injured by the result; and the judgment determining the amount of indebtedness secured by the mortgage will be affirmed.</p> <p>Id.—Interlocutory Decree— Reeerenoe — Affirmance — Principles not Pixed—Consent to Hearing by Court—Review upon Appeal. .—Where an interlocutory decree for an accounting affirmed by this court ordered a reference to take the account against a mortgagee in possession, but did not purport finally to determine the rights of the parties as to the rules or principles upon which the account was to be taken, and by consent of the parties the reference was abandoned, and a hearing had by the judge, the matter and method of the accounting was thereby set at large, and the decision of the court is subject to review in this court.</p> <p>Id.—Construction of Finding—Non-Payment of Note—Legal Satisfaction.—A finding as to non-payment of the note from the mortgagor to the mortgagee, taken in connection with the other findings, is construed to mean that there was never any express application of the advances as a payment thereon, and not that the note was not in fact satisfied by the legal application of the moneys advanced to the mortgagee as payments thereon.</p>

Relies on Moss v. Odell

Good law ✅— No negative treatment on recordhow we know

Decided 1903-12-19

How this case has been cited

Cited by 12 later decisions — most recently July 2011

5 federal appellate · 2 district · 5 state decisions

70190319101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The petition for rehearing is denied. The rules or principles upon which the account was to be taken and stated were not irrevocably fixed and settled by the former interlocutory decree, and the decision of this court affirming the same. (Moss v.Odell,134 Cal. 464.) That part of the *339 interlocutory decree does not of itself purport to finally determine the rights of the parties, but was a mere direction to the referee to take proof and report as to certain facts. The report was to be made to the court. The matter was still infieri, and the court could at any time change the directions to the referee. In fact, however, the reference was abandoned, and by consent of the parties the evidence relating to the account was heard by the judge of the court below and the account was stated by him as part of the findings. This set the matter at large with respect to the interest to be allowed and the method of casting the account, and leaves it subject to review by this court on this appeal.

¶2Nor is there anything in the opinion upon the former appeal purporting to declare the law upon these points, or to affirm this part of the interlocutory decree. On the contrary, that opinion expressly left open the questions relating to the rules and principles upon which the account should be settled and the credits adjusted, thus in effect holding that the decree then before the court was not final in these particulars, and this, whether correct or not in principle, has thus become the law of the case. We construe the finding that the note for $3,409 was not paid, taken in connection with the other findings, to mean that there never was any express application of the advances as a payment, and not that the note was not in fact satisfied by the moneys advanced.

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