Bullion & Exchange Bank v. Otto

• Decision Date: 11 December 1893
• Docket Number: 573.
• Citation: 59 F. 256
• Parties: BULLION & EXCHANGE BANK v. OTTO et al.
• Court: U.S. District Court — District of Nevada

59 F. 256

BULLION & EXCHANGE BANK v. OTTO et al.

No. 573.

United States Circuit Court, D. Nevada.

December 11, 1893

Trenmor Coffin, (Goodwin & Dodge, of counsel,) for plaintiff.

James R. Judge, (A. L. Shinn, of counsel,) for defendants.

HAWLEY District Judge, (orally.)

The principles involved in this case are in many respects substantially the same as in No. 572 and need not be again stated or discussed. In this case the testimony shows that James Marshall, acting for M. E. Spooner and the Bullion & Exchange Bank, under an oral agreement between said parties, took possession of the real estate known as the 'Spooner Ranch,' to hold and keep possession thereof for the bank as the mortgagee of said property. The defendants in this suit thereafter, on the 18th of November, 1892, obtained the possession of the real estate under an agreement or lease from Mrs. Clara Spooner, and have ever since been in the possession thereof. At the time of the commencement of the foreclosure suit the plaintiff filed in the recorder's office of Lassen county a notice of lis pendens of said suit, and the same was duly recorded. The other facts, so far as applicable, are the same as stated in Marshall v. Otto, 59 F. 249.

It is claimed that the oral agreement of M. E. Spooner with the bank, to deliver the possession of the real estate, was within the statute of frauds. But the question is not whether the oral agreement could have been enforced if M. E. Spooner had refused to deliver the possession. The statute only affects the parties to the agreement. The facts are that M E. Spooner delivered the possession to Marshall for the mortgagee, and, the agreement having been executed, it is valid between the parties. The defendants are certainly not in a position to urge the statute of frauds as a defense to this suit. Book v. Mining Co., 58 F. 106. The right to make such an oral agreement is well settled, and the effect of such an agreement, and of the possession taken thereunder, is clearly and correctly stated in Spect v Spect, 88 Cal. 440, 26 P. 203. The question presented in that case was whether a mortgagor who had placed his mortgagee in possession of the mortgaged premises could maintain ejectment against him while the debt for which the mortgage was given remained unsatisfied, even though an action by the mortgagee for the recovery of the debt is barred by the statute of limitations. The court, after quoting ...