Wagner v. Shoemaker

MARKS, J.

This is an appeal from a judgment which, among other things, provides that plaintiffs ’ title to certain lands in Riverside County be quieted; that defendants be en

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joined from foreclosing a trust deed on these lands; that defendant Pioneer Title Insurance and Trust Company re-convey that property to plaintiffs. The judgment was conditioned on the payment of $2,407.50 by plaintiffs to Clyde C. Shoemaker.

On April 1, 1932, plaintiffs executed their promissory note in the principal sum of $8,366.18, payable to Helen M. Cox, now Helen M. Cox Bennett, in instalments, together with interest at the rate of seven per cent per annum. This note was secured by a deed of trust subject to a prior encumbrance which has been paid.

Plaintiffs failed to make the payments on their note as they became due and a notice of default was recorded. Under date of September 8, 1935, Helen M. Cox Bennett and her husband entered into a contract with plaintiffs wherein it was agreed that the indebtedness evidenced by the note be reduced to $3,000, payable, $750 forthwith, and the balance of $2,250 in instalments of $1,000 per annum, with interest at the rate of seven per cent per annum. This contract contained the following:

“It is further understood that said George Wagner and wife shall make application for a Government loan upon said above described premises, and in ease said loan is obtained then in that instance the total unpaid balance upon said note shall be paid in full at the time said loan is obtained.”

The following summary of part of the findings of fact detail the factual situation to be considered in determining the questions necessary for decision here: That prior to September 8, 1935, only $50 had been paid on the principal of the promissory note; that on that date the contract of compromise was executed and $750 paid to Helen M. Cox Bennett; that plaintiffs made an application for a government loan on the property, which was granted on June 25, 1936, in an amount sufficient to pay “the said balance on said note and trust deed”; that plaintiffs performed all the conditions of the contract of September 8, 1935, on their part to be performed; that on March 16, 1936, Shoemaker, with knowledge of the terms of the contract of September 8, 1935, purchased the note and deed of trust; that on August 14, 1936, plaintiffs tendered Shoemaker $2,407.50 in lawful money, being $2,250 principal, with interest from September 8, 1935, to date of the tender; that Shoemaker rejected the tender on