Cords v. Goodwin

CONREY, P. J.

The object of this action was to cancel a certain agreement relating to the satisfaction of a mortgage, to reform a release of the mortgage executed in pursuance of said agreement, and thereupon to foreclose said mortgage. The ground on which the relief was asked was that the agreement and release were given in consequence of a mutual mistake of "the parties. The present appeal is from a judgment of nonsuit. The respondents have not appeared herein.

The principal facts of the case are stated in the decision of the supreme court on a former appeal.

(Cords

v.

Goodwin, 173

Cal. 61 [159 Pac. 138].) The mortgage was given by defendant Goodwin to plaintiff’s assignor Tillman, to secure one-third of the purchase price of the mortgaged property, which was sold to the mortgagor at the price of $150 per acre, it being stated in the contract that the tract contained 797 acres of land. The mortgagor and the mortgagee afterward agreed that there was a shortage of 92.99 acres in the quantity of land of which the mortgagor had obtained possession. Thereupon they entered into an agreement under which the mortgagor paid that proportion of the debt which corresponded to the proportion of acreage which he had received, leaving the remainder to be paid

[614]

only to the extent that possession of the disputed acreage (92.99 acres) should be obtained by the mortgagor. In prosecuting this action to reform the release of mortgage and to foreclose the mortgage, the plaintiff alleged that in fact there had never been any adverse claim to any of the mortgaged premises as described in the mortgage and agreements of the parties, and that therefore the mortgage indebtedness and the mortgage lien were in full force and effect according to their original terms, save only to the extent of the payments actually made.

In its decision of the former appeal the supreme court determined that upon the facts shown by the evidence there was a shortage of area in section 28 sufficient to account for 13.71 of the total claimed shortage of 92.99 acres, and that by reason thereof the mortgagor is entitled to a rebate of a stated amount on the purchase price and a corresponding reduction on the mortgage debt by reason of this deficiency in the area of that section. This left an alleged shortage of 79.28 acres in the several tracts lying in section 27, described in the deed and mortgage. This shortage was caused by the encroachment of the owner of Tinaquaie Rancho, adjoining upon the easterly side of section 27. Many years ago, in establishing the boundaries which he claimed, the owner of that rancho set fences upon the westerly boundary thereof adjoining section 27. These fences overlap the boundaries of the subdivisions of section 27 far enough to include said 79.28 acres. This land is properly within the boundaries of the description contained in the mortgage, but the purchaser Goodwin has never obtained possession thereof. The supreme court recognized the difficulty in final determination of the ease as then before the court for decision, which difficulty arose from the fact that the owners of said adjoining rancho, who were in possession of the overlap included within the mortgage description, were not parties to the action. “The defendants have acquired the record title to the land included in the overlap, but have not received possession. If the judgment stands in its present condition we cannot say that the defendants may not hereafter be able to obtain possession of this overlap. The mortgage debt is not fully paid. If the defendants should succeed in obtaining possession of the overlap, or if the plaintiff should succeed in procuring it for them, he would