Rhodes v. Bush

JENNINGS, J.

This appeal is from a judgment refusing to impose a personal liability upon respondents and refusing to declare and enforce a vendor’s lien upon certain real property.

Concerning the facts of the case there is, with one exception which will hereinafter be noted, no material dispute. On April 12, 1923, Guiseppe and Emilia Yalpreda entered into a written contract with Otis and Ida Vestal wherein the former agreed to convey to the latter the real property which plaintiffs sought by this action to impress with a vendor’s lien. The consideration for the conveyance was stated to be $16,627.50, of which sum $3,000 was paid at the time the contract was executed and the balance was to be paid in annual installments of $2,725.50, with interest at the rate of seven per cent. Title was to remain in the sellers until payment of the entire purchase price was completed. On April 30, 1925, Irwin S. Burgess entered into a written contract with the Vestals, whereby he agreed to purchase from the Vestals their interest in the property which they had agreed to buy .from the Valpredas for the sum of $5,715.50, to be paid in installments. The Vestals thereupon, on said date, executed a written assignment to Burgess of their contract with the Valpredas. The Vestals were then in default in their contract with the Valpredas, having failed to make the annual payment due on April 12, 1925. On May 4, 1925, Burgess made a written assignment of a one-half interest in the contract which he had procured by assignment from the Vestals to respondents Bush. On May 12, 1925, the Vestals borrowed $3,400 from the First National Bank of Chino and as evidence of their indebtedness executed their promissory note for the amount loaned to them. To secure the. payment of this note, the Vestals executed a written assignment of their contract of April 30,

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1925, with Burgess, and authorized Burgess to pay all moneys due and to become due upon the contract to the bank. Respondent William J. Bush was advised of this assignment during the autumn of 1925 and on December 1, 1925, made a payment to the bank of $300 due on the contract between Burgess and the Vestals. At some time prior to October 27, 1926, and subsequent to May 21, 1926, the Valpredas instituted an action against the Vestals for cancellation of the agreement entered into between these parties on April 12, 1923. Respondents were served with process in this action and interposed an answer. Burgess was likewise served with process and filed an answer. On October 29, 1926, Burgess executed an assignment to respondents of all interest that he had in the contract between himself and the Vestals for an expressed consideration of $1235.53. On November 22, 1926, the Valpredas executed a grant deed to the real property which, by their contract of April 12, 1923, they had agreed to sell to the Vestals. Respondents were named as grantees in this deed and the evidence shows that respondents paid to the Valpredas the balance due them under the contract of April 12, 1923, being approximately $8,000. On December 9, 1926, the Vestals executed and filed with the court a written confession of judgment in the action instituted against them by the Valpredas. In the confession of judgment thus filed the Vestals recited that they had not been able to comply with the terms of the contract between themselves and the Valpredas and had defaulted in the payments due from them and authorized the entry of a decree of cancellation of the contract. Thereupon on December 11, 1926, the court made and entered its decree annulling and canceling the contract. On April- 28, 1927, the Vestals were indebted to the First National Bank of Chino in the sum of $1925.89, being the balance due from them on the loan made to them on May 12, 1925. The Vestals thereupon on said date executed their promissory note payable to the bank for the amount of this balance of their indebtedness. This note contained the provision that as collateral security for its payment, the makers thereby assigned and transferred to the bank the contract between themselves and Burgess and authorized the bank to sell their interest in the contract upon their default in payment of the note at its maturity. This