Carter v. Sill

CRAIG, J.

This is an appeal on the judgment-roll alone from a judgment in favor of the defendants in a suit to quiet title to certain real property situated at Bakersfield, in the county of Kern. The plaintiff claims as grantee of L. L. Bateman.

The complaint is in the usual form. The answer and supplemental answer allege, and upon a trial of the issues the court found, that the plaintiff was not the owner of an interest in, nor entitled to possession of, the property in suit, but that defendant Sill had legally acquired the title, was the lawfully constituted owner and entitled to possession.

The facts as set forth by the defendant’s pleadings and in the findings are, substantially, that on May 8, 1911, one L. L. Bateman was the owner and in possession of the property; that Bateman and wife on that date mortgaged the same to the Producers Savings Bank, which said mortgage the bank subsequently assigned to Ben H. Sill; that Sill thereafter foreclosed this mortgage on October 24, 1918.

It is further alleged, and found by the court, that previous to such foreclosure, and on October 24, 1913, Bateman was the owner of the property, subject to said mortgage, and that on the latter date Sill signed as accommodation maker

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with Bateman a note to the Security Trust Company for two thousand dollars, the Batemans in turn executing to Sill and the bank a grant deed, conveying the same property as security; that on May 8, 1914, Sill paid the bank in full its interest on account of this obligation.

That pursuant to the decree of foreclosure under the mortgage of May 8, 1911, one A. T. Lightner, as commissioner named in the decree, sold the property to one Fred Gunther for $2,401.21, which Gunther paid, and received the commissioner’s certificate of sale, a duplicate of which was duly recorded, and that subsequently Sill redeemed from Gunther.

The findings of fact further state that on December 5, 1919, the plaintiff and Bateman met the commissioner in the courthouse, displaying certain money to him and stating that Bateman desired to redeem the property from the effect of the sale under foreclosure of May 8, 1911, and that the money offered was the amount for which the property had been sold to Gunther, with interest at one per cent per month from date of sale, but that it did not include the lien of Sill under which he had redeemed. Lightner informed them that before he could act he would have to confer with Sill’s attorneys; that thereupon the plaintiff, Carter, and Bateman went to Carter’s attorneys, where they met Sill and his attorney; that plaintiff’s attorney accompanied them and there offered Sill two thousand eight hundred dollars, stating that it was offered to redeem, but that it did not include Sill’s lien for the reason that the latter was barred by limitation. Sill thereupon referred the matter to his counsel, who replied that he would give them an answer the next day at 10 o’clock. After some discussion it was mutually agreed that an answer should be given on the 8th, which was Monday; that Bateman thereupon took the money from Allen and offered it to Sill and to his counsel, demanding a reply “then and there,” but defendant’s attorney stated that he should have his answer on the 8th, as agreed. On said eighth day of December Sill’s counsel notified counsel for the plaintiff in writing that the offer was accepted, and that Sill would receive the money and convey at any time before the 15th, when the right of redemption would expire.