Huene v. Cribb

ALLEN, P. J.

Appeal by plaintiff from a judgment rendered upon an order sustaining a demurrer to a complaint.

It is alleged in the complaint that oh September 7, 1904, defendants Cribb and Sinclair conveyed to one Holmes certain described premises, and received, as part of the consideration therefor, the note of Holmes for $1,100, secured by a written instrument on the premises sold, in form a trust deed, but in fact a mortgage, in which instrument said Holmes was party of the first part, the Title Guarantee and Trust Company the party of the second part, and Cribb and Sinclair parties of the third part. That on May 24, 1906, plaintiff acquired said premises subject to said written instrument; that afterward, on the 10th of July, 1906, when $889.98 of the indebtedness secured by said instrument was unpaid, the Title Guarantee and Trust Company and said Cribb and Sinclair agreed with plaintiff, in consideration of the full payment of the said note and interest due thereon, to extend the

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time of payment of said note until the Title Guarantee and Trust Company should prepare and deliver to plaintiff an ab-> stract of title for said premises, and on the 18th of October, 1906, on the same consideration, renewed said agreement, but the Title Guarantee and Trust Company, although requested, failed and neglected to deliver to plaintiff such abstract of title and never prepared the same. That plaintiff, relying upon said promise and agreement, provided and had in her possession at all times the money with which to pay off the obligation so secured by said written instrument; that notwithstanding this agreement, Cribb and Sinclair, on the 17th of November, 1906, caused the Title Guarantee and Trust Company to sell, under notice, the said premises, and Cribb and Sinclair purchased the same for $1,275, claiming that sum to be the amount due under the said instrument; that plaintiff had no knowledge of such sale until the 26th of November, 1906; that on December 7th following she tendered to Cribb and Sinclair and to the trustee the full amount for which such property was sold, and all interest due thereon, and demanded a reconveyance of said premises; that the property so sold is of the value of $6,500. Plaintiff prays that the sale be set aside and declared void, that the property be reconveyed to plaintiff and her title thereto be quieted, and for other appropriate relief.