Robinson v. Barnard

ROTH, J.,

pro tem.

On December 28, 1925, as security for eleven several promissory notes payable to respondent Chas. Barnard, each due on December 28, 1930, appellants, as trustors, executed a deed of trust to Ventura County Title

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Company, as trustee, upon real property therein described, Chas. Barnard being named as beneficiary.

Prior to the maturity of the notes and thereafter, the parties had extensive negotiations for the liquidation thereof, pursuant to which extensions for payment were from time to time granted by respondent. These negotiations were devoid of any results, and nothing was paid on account of said notes. The indulgence of respondent having been finally exhausted, appellants, in order to save themselves the cost of sale and other expenses incident thereto, did on July 6, 1931, execute to respondent a deed absolute on its face conveying to him the property described in the trust' deed, in full and complete satisfaction and for the full and complete release of the indebtedness of $18,000, plus accrued interest, delinquent taxes and other proper charges. Contemporaneously with the execution of the deed absolute, a second instrument was executed entitled “An Exclusive Right to Purchase”, the effect of which was to give appellants the exclusive right to purchase the property in question on or before October 2, 1931, for a sum which aggregated the principal of the original sum of $18,000, plus interest, accruing costs, charges and advances made by respondent, said total sum to be paid part in cash and part in notes, the notes to be secured by a trust deed on the identical property. The right to purchase granted as aforesaid, was not taken up at the time granted or at all, but instead appellants on November 7, 1931, filed an action which prayed for varied relief, but the prime and specific purpose of which was to have the deed absolute and the exclusive right to purchase declared a mortgage. Plaintiffs allege in their complaint: “ . . . that said instrument purported on its face to convey the entire estate in fee, without any conditions, but in reality it was given and intended to be given by the Plaintiffs, and was received, and intended to be received,, by the Defendant Charles Barnard, as a Deed of Defeasance, and was so given and received only as security for the payment of the said promissory notes; ...”