Mission Brewing Co. v. Rickert

THOMAS, J.

This is an action brought to foreclose a mortgage on personal property owned by defendants Rickert and Widmaier. The defendant Piwald, according to the allegations of the complaint, claims some interest in the property, and because of that fact is joined as defendant. The complaint is in the usual form. The defendant Rickert denies all the material allegations of the complaint, and by way of separate defense alleges that the defendants Rickert and Widmaier and the plaintiff herein entered into an agreement by the terms of which, among other things, it was provided that the present action should be withdrawn and the defendant Ralph Piwald permitted to assume the payment of the note sued on here and to secure which the mortgage here sought to be foreclosed was given. By way of further defense it was alleged that, by virtue of certain contracts entered into on June 23, 1913, between defendant Rickert and one John Crockett, on one side, and one Wilson Chamberlain on the other, the latter agreed to sell, and the said defendant Rickert and the said Crockett agreed to buy, certain described real property for the sum of twenty thousand dollars; that thereafter, and prior to the eighteenth day of November, 1913, said defendant and said Crockett paid thereon the sum of five thousand dollars; that thereafter the said Crockett assigned and transferred all his interest therein to A.

Widmaier;

and that thereafter the defendants Rickert and Widmaier assigned and transferred all their right, title, and interest therein to plaintiffs as security for the payment of a promissory note made to plaintiff for the sum of two thousand five hundred dollars, and interest; and, as a part of the same transaction, these defendants delivered the chattel mortgage sought to be foreclosed here. That on or about November 20, 1913, these same defendants “transferred” to one R. M. Piwald all their interest and estate in, and right and title to, the Sunset Café, at Ocean Beach, and at the same time conveyed to the Union Title and Trust Company, a corporation, for said Piwald, all their interest in said property—all subject to the interest in, or lien upon, said property of said plaintiff. That it was

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understood and agreed by said defendants and said Piwald, and said Union Title and Trust Company, and said plaintiff, that the mortgaged property, together with defendants’ interest in said mortgage, so transferred to the Union Title and Trust Company, should be held, and continued to be held, by plaintiff as security as aforesaid. Defendants, “on information and belief, ’ ’ further alleged that the Union Title and Trust Company, the said plaintiff, and said Piwald entered into a written contract with said Wilson Chamberlain, by virtue of which it was agreed that Chamberlain would make a new contract for the sale of the land to Piwald, for the sum of fifteen thousand dollars, and that Piwald should immediately assign such contract to plaintiff as security for the payment of said promissory note; and that the same should take effect of, and be substituted for, said contract between said Chamberlain and said defendants—although the defendant Rickert did not, for a long time after the making of the contract last referred to, know of its execution or