First Bank of Jamestown v. Gillis

PLUMMER, J.

Plaintiff had judgment against the defendants for the sum of $950 as the value of a certain apple crop taken possession of and sold by the defendants. From this judgment the defendants appeal.

The cause was tried before the court sitting without a jury, and at the conclusion thereof the court found, among other things, as follows, to wit:

That in the month of February, 1924, J. P. Gibbons, T. E. Hunt and Marion Hunt, his wife, executed and delivered to J. B. Ryan and W. E. Booker, for the benefit of the plaintiff, a certain deed of trust, wherein and whereby they conveyed to Ryan and Booker, as trustees of plaintiff, certain premises described in the deed of trust, including about 300 acres of land; that upon the land so included in the deed of trust, was a bearing apple orchard; that the indebtedness secured to be paid to the plaintiff by the deed of trust just mentioned, became due and payable in the month of January, 1926; that the guarantors in said deed of trust defaulted in the payment of the amount secured thereby, and in said month of January, 1926, they delivered to the possession of the plaintiff all of the property described in said deed of trust; that thereafter, and on or

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about the second day of June, 1926, proceedings were begun for a foreclosure of said deed of trust, and the same was thereafter foreclosed and a conveyance made of the premises included in said deed of trust to the plaintiff, on or about the twenty-third day of October, 1926; that prior to said conveyance by said trustees under the sale referred to, to the plaintiff, the guarantors in said deed of trust granted and quitclaimed to the plaintiff the same premises; that at the time of the commencement of this action the plaintiff was the owner of the premises referred to herein, and during all the times mentioned in this complaint was entitled to the possession thereof, and to the rents, issues and profits thereof, and to all crops raised or grown thereon; that after the plaintiff had taken possession, as aforesaid, under an agreement with the guarantors in said deed of trust, and in about the month of June, 1926, said defendants offered to purchase said property under a verbal agreement and understanding with the plaintiff that the purchase was to take place and be completed at such time as the plaintiff could give a good and sufficient title thereto, and it was understood and agreed that conveyance would be made only after sale of said property was had under the terms and provisions of said trust deed; that this proceeding was completed and title perfected on or about the twenty-third day of October, 1926, and the plaintiff offered to convey said property to the defendants. It further appears in the findings that a dispute arose between the parties as to the amount of. the "purchase price to be paid therefor, and that the defendants refused to purchase the same, and have neglected, failed and refused to purchase said property, and that said defendants did not at any time become the owners of said property, or entitled to any right, title or interest therein. That in the month of June, 1926, and pending the time that said property was being sold under the trust deed referred to, and without any agreement or understanding between the plaintiff and the defendants relative to the possession of said property, the defendants entered upon the property and remained in possession thereof until about the sixth day of November, 1926. The court further found that at the time said defendants went into possession of said property in June, 1926, there was an apple orchard upon said property with a crop of apples nearly matured; that the de