Turner v. Gosden

SPENCE, J.

Plaintiff brought two actions, one to quiet title and the other in ejectment. Defendant Clarice Dawson was the sole defendant who appeared and answered. The causes were tried together by the court sitting without a jury and from judgments entered in favor of plaintiff in both cases, defendant appeals.

Respondent claims through a deed from defendant Frances E. Dawson, the predecessor in interest of defendant and appellant Clarice Dawson. The sole issue in the trial court and on this appeal is found in the contention of said defendant and appellant that the deed from Frances E. Dawson to respondent was delivered as and was intended to be a mortgage. We find no merit in this contention.

[21]

The property involved was lot 16 in what is known as the Seager tract. It was one of four contiguous lots numbered 15, 16, 27 and 28. Said lot 16 was conveyed by Frances E. Dawson to respondent as nominee of Nellie Parks in a somewhat unusual transaction between said Nellie Parks and said Frances E. Dawson. Nellie Parks owned lots 15 and 28, which were unencumbered. Frances E. Dawson owned lot 16, which was heavily encumbered and foreclosure was threatened. The Dawsons were unable to refinance lot 16, but believed that they could avoid fore- " closure under a plan which contemplated the leasing of all four lots to a hotel company under a 99-year lease for the purpose of erecting an apartment hotel. The title to lot 27 was in Harriet E. Gilmore. The first suggested plans failed and thereafter in January, 1927, Nellie Parks and Frances E. Dawson entered into an agreement and filed escrow instructions, together with other documents, including an option to lease in favor of the hotel company, signed by Nellie Parks. We need not detail all of the terms of these instruments nor all of the terms of the amended escrow instructions thereafter filed. The plan agreed to was that Nellie Parks was to convey her unencumbered lot 15 to Frances E. Dawson with permission to execute a mortgage in the sum of $20,000 covering both lots 15 and 16 in order to pay off the existing encumbrance on lot 16; that Frances E. Dawson would thereupon convey lots 15 and 16 to Nellie Parks and respondent respectively, subject to the $20,000 mortgage; that in the event that title to lot 27 was procured by Francis E. Dawson and conveyed to Nellie Parks and the 99-year lease was procured from the hotel company, said Francis E. Dawson and Nellie Parks were to become owners of all four lots as tenants in common; that otherwise in the event that title to lot 27 was procured by Frances E. Dawson and conveyed to Nellie Parks, said Francis E. Dawson would have the right upon payment of $22,000 to a conveyance of both lots 15 and 16, subject to the $20,000 mortgage. The limit of time within which any of these conditions could be met by Frances E. Dawson was June 1, 1927. It was further agreed by paragraph 6 of the agreement as follows: “6. That in the event that the terms and conditions of said escrow No. 946972, and of this Agreement and of said Option to Lease, shall