Smith v. Brown

BARNARD, P. J.

The plaintiffs were the owners of a promissory note for $1,000 signed by the defendants Brown and secured by a trust deed covering certain real property then owned by them. Thereafter the Browns exchanged this real property for other property owned by the defendants Beck. Subsequently the plaintiffs foreclosed this trust deed and, after bidding in the property for $600, brought this action seeking a deficiency judgment against all of the defendants for $1,038.53. The defendants Brown defaulted, a nonsuit was granted as to the defendant Helen K. Beck, and judgment for the plaintiffs was entered against the defendant Albert Beck, from which he has appealed.

The several points raised may be treated together as one, namely, that the evidence does not sustain the findings to

[494]

"the effect that the appellant assumed and agreed to pay the indebtedness in question.

Examining the evidence, we find an escrow agreement dated May 2, 1930, signed by the appellant and the defendant Robert W. Brown, in which these parties agreed to exchange their respective properties. This agreement refers to the above-mentioned encumbrance on the Brown property and contains this clause: “Deed from Brown to recite, grantee herein assume and agree to pay present encumbrances of record.” The agreement also provides that the deed of the Brown property shall be made to “Helen K. Beck Albert Beck,” with a line drawn through the name “Albert Beck” in that provision. The escrow officer of the title company which handled the escrow testified that after the appellant signed the escrow agreement he asked that his name be stricken from the clause above quoted, leaving Helen K. Beck as the sole grantee, and that thereupon the appellant struck out the words “Albert Beck” in that clause. The deed from the Browns, which was also executed on May 2, 1930, and later recorded, was introduced in evidence. In this deed Helen K. Beck appears as the sole grantee and the deed recites that the same is subject to “a trust deed securing a note for $1000 as of record, which the grantee herein assumes and agrees to pay”. There was evidence that the deed was in the appellant’s possession after the deal was closed and Helen K. Beck testified that she knew nothing about the transaction, that she had never received the deed, and that she had not been informed that the property had been conveyed to her.