Zenda Mining and Milling Co. v. Tiffin

SHAW, J.

On November 28, 1903, defendant Tiffin had docketed in Kern county a deficiency judgment against George W. Cummings. On September 25, 1905, claiming that Cummings had, after the docketing of the judgment, acquired an interest in certain mining property situated in Kern county, the title to which then stood in the name of plaintiff, to which the lien of his judgment had attached, defendant had an execution issued and caused the same to be levied upon said mining property,-and sold to satisfy said judgment so docketed against Cummings. At the sale defendant became the purchaser thereof; whereupon plaintiff brought this action to quiet title. Judgment went in favor of plaintiff, from which defendant prosecutes an appeal upon the judgment-roll.

The ease was tried upon an agreed statement of facts, from which it appears that on September 8th, prior to the docketing of said judgment, Benjamin G. Parlow entered into an agreement with Cummings whereby he agreed to sell and convey to the latter an undivided 26/48 interest in said mining property, together with certain water rights and millsite connected therewith. The consideration for such proposed sale was $8,920, $3,500 of which was payable in cash, and the balance to be paid out of the proceeds of milling the ore from the mine, a mill for which purpose Cummings agreed to install within eight months from September 8th. At the time of entering into this contract Parlow signed and acknowledged two deeds conveying the property to Cummings. On the same day, and as a part of the same transaction, Cummings entered into a contract with H. W. Bryson and associates, which was, in effect, an assignment to Bryson et al. of the contract

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secured by him from Parlow; Bryson and associates agreeing to perform the covenants made by Cummings in his contract with Parlow. As part of the same transaction, and on the same date, Cummings signed and" acknowledged two deeds, wherein Bryson and associates were made grantees, which deeds were of like effect as those wherein he was made grantee in the deeds from Parlow. Bryson and his associates paid to Parlow the cash payment of $3,500, and thereupon the contract made between Parlow and Cummings, together with the deeds from Parlow to Cummings, and the contract between Cummings and Bryson et al., together with the deeds from Cummings to Bryson and associates, were placed in escrow with instructions to the holder, signed by all of said parties, to the effect that if Bryson and associates should, withih the time specified, perform the conditions specified in the contracts, all of said papers and deeds were to be delivered to the latter; otherwise, and in case of failure to comply with the conditions, the Parlow agreement and deeds by him made to Cummings should be delivered to Parlow, and the other papers to Cummings. Bryson and associates entered into possession of the property, and thereafter fully complied with the conditions of the escrow and received all of the papers some time in March, .1904, at which time all of them were filed for record, actual notice of which fact defendant had long prior to the sale. Plaintiff was created a corporation by Bryson and associates, and they, by deed dated February 24, 1904, conveyed all of said property so acquired from Parlow to the corporation. Cummings never paid anything on account of the purchase of the property, the entire consideration therefor having been paid by Bryson and associates. After entering into possession of the property on September 8, 1903, Bryson et al., and plaintiff as their grantee, made improvements, extracted ore from said mine and milled the same.