Greene v. Colburn

VALLEE, J.

Appeal by defendants from a judgment decreeing plaintiffs are the owners in fee simple of certain realty subject to a mortgage for $1,800 in favor of defendants and that defendants reconvey the realty to plaintiffs free of the mortgage on receipt of $1,800 within five days after entry of judgment.

Charles Quandt was the owner of the realty. In the first part of May 1947 plaintiff Rexford Greene told defendant August Colburn he was interested in buying the realty. On May 23, 1947, Greene agreed to buy from Quandt for $3,500 with a down payment of $1,500, the balance at $35 a month including interest. Colburn loaned Greene $1,500 to make the down payment and Greene agreed to pay Colburn $7.50 a month as interest on the $1,500 loan. It was agreed between Greene and Colburn that when the balance of $2,000 was paid Colburn would execute a deed to the property to Greene and the latter would execute a deed of trust in favor of Colburn to secure the $1,500 and pay the same at the rate of $35 a month including interest.

Quandt showed Greene a deed to the property and Greene signed what he thought was a deed of trust in favor of Quandt for the $2,000. Greene thought the deed Quandt showed him was delivered to Colburn as additional security. However, Quandt conveyed the property to Colburn and Colburn executed a deed of trust for the $2,000. Greene did not know the property was conveyed to Colburn. He first learned this in March, 1955, during an unlawful detainer proceeding brought by Colburn against Greene. Colburn testified he took the Quandt deed so as to be secure in his investment and not to

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have to foreclose in the event of default. Mrs. Colburn testified they took the deed from Quandt as security.

Greene took possession of the property from Quandt about May 23, 1947 and remained in possession continuously until the trial of this action. During that time he improved the property. He paid the taxes until 1950. After that time he was financially unable to and Colburn paid the taxes. In March, 1951, Colburn and Greene agreed that Colburn would pay the taxes and Greene “could pay him at the tail end of the agreement” with interest. They also agreed that when the $2,000 was paid by Colburn, Greene would make the monthly payments of $42.50 to Colburn so as to set up a reserve for taxes. The $2,000 was fully paid by about February 1953. Greene was unable to make the February 1955 payment.