Apra v. Aureguy

MoCOMB, J.

— From a judgment in favor of defendant after trial before the court without a jury in an action for an accounting of the amounts due on two notes and for an injunction enjoining defendant from refusing to reconvey to plaintiff one of the notes and a second deed of trust, plaintiff appeals.

Facts: On November 16, 1955, defendant purchased from plaintiff an apartment house at 649 J ones Street in San Francisco. Under the terms of the contract of sale, plaintiff agreed to accept: (1) the equity in a house in Belvedere, California, and the equity in an apartment house at 1836 Vallejo Street, San Francisco; (2) approximately $15,500 in cash; and (3) a note in the amount of $22,000, bearing interest at the rate of 6 per cent per annum beginning December 16, 1955, interest to be paid quarterly until December 16, .1956, at which time principal and interest payments were to be made monthly at the rate of $167 per month until the note Avas fully paid. The note was secured by a second deed of trust on the Jones Street property.

On March 1, 1956, defendant loaned to plaintiff the sum of $8,500. Plaintiff executed and delivered a promissory note for this amount to defendant. As security for his $8,500 note, plaintiff reassigned to defendant her $22,000 note and the deed of trust on the Jones Street property. On the same date the parties entered into an agreement which described

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the above-mentioned transaction and also provided that if, after the payment and satisfaction of the $8,500 note, plaintiff wished to sell the $22,000 note and deed of trust, defendant was to have an option to buy them for the same price as might be offered by a bona fide purchaser.

The agreement further provided: “It is further understood that in consideration of the $8,500.00 loan, specified payments of interest and principal

shall he credited on the said $22,000.00 note and deed of trust as the same become due and payable until the due date of said $8,500.00 note, or earlier termination thereof as hereinafter provided.”

(Italics added.) Then followed provisions stating: (1) that if the Jones Street property was sold or transferred, plaintiff was to have the privilege of paying the $8,500 note; and (2) that the $22,000 note and deed of trust were to remain in escrow, subject to withdrawal only on the instructions of both parties, and subject to sale, etc., only with the consent of both parties.