Roberts v. True

SHAW, J.

This is an action for the specific performance of a parol agreement to convey real estate. Judgment was rendered for plaintiff, from which, and an order denying their motion for a new trial, defendants appeal.

[380]

Defendants are husband and wife. For the purpose of securing the payment of a certain promissory note Henry B. True executed and delivered to plaintiff Roberts what purports on its face to be a deed of trust in the usual form (except that Roberts, the payee of the note, is made trustee therein with power of sale in case of default in the payment of the said note, but which instrument defendant Henry B. True alleges to have been intended and understood to be a mortgage), whereby he conveyed to Roberts the legal title to the real estate in question. ‘ The note was not paid and Roberts and Henry B. True made an oral agreement whereby plaintiff agreed to surrender the note and discharge such deed of trust, in consideration of which defendant Henry B„ True was to convey the property to plaintiff and plaintiff was to lease the same to him for a term of three years. Pursuant to this agreement plaintiff delivered the note to defendant Mary True, and on January 18, 1898, made the following indorsement upon the margin of the record of the deed of trust: “Full payment and satisfaction of the within trust deed hereby acknowledged, J. V. Roberts. Signed and acknowledged before me this 18th day of' Jan., 1898. F. S. Benson, County Recorder, by J. W. Crosland, Deputy Recorder.” And on or about January 20, 1898, plaintiff executed to True a lease of the said premises for a term of three years. On May 18, 1898, defendant Henry B. True filed a declaration of homestead upon the property, and thereafter refused to execute a deed to the land in accordance with his agreement with plaintiff; hence this suit.

The principal contention of appellants is that, as Mary True was not a party to the agreement, its terms cannot be enforced as against her rights which accrued by virtue of the filing of the declaration of homestead by her husband. It is unnecessary to enter upon a discussion of this point, as it is clear that plaintiff was not entitled to. judgment for another .reason.

The instrument is a deed of trust in the usual form whereby the legal title to the property was vested in Roberts