Foster v. De Venney

CARY, P. J.

Plaintiff is administratrix of the estate of Mary Henman, deceased. Deceased, an elderly spinster whose eyesight and hearing were defective, was the owner of the land which is the subject of this litigation. Having but little experience in business affairs, she relied in such matters upon the advice of one Crandall. She lived on the northwest portion of this property and the remainder was occupied by a dilapidated hotel building. A seven thousand dollar mortgage encumbered the entire parcel. Unable to meet the rising tide of taxation and assessments she contacted a realtor, Chittick, with the request that he find a purchaser. In due course he produced defendant. Deceased referred defendant and Chittick to Crandall with whom they briefly discussed the proposed sale. A rough memorandum of the terms drawn by Chittick was shown to Crandall who expressed his approval. At this point there is a conflict in the evidence. Defendant claims that the agreement of sale as finally executed corresponded with the terms of the rough draft shown Crandall. Crandall on the contrary testified that the final agreement differed materially from the one approved by him. He stated that from his negotiations with defendant he understood that defendant was to pay deceased a small amount in cash, pay off the seven thousand dollar mortgage in full, buy the land except that portion which included deceased’s house and as security for the balance of the purchase price give deceased a trust deed on the purchased property payable at eighty dollars per month. Thus deceased would have had her own house free and clear and an income of eighty dollars per month secured by a first lien on the balance of the property. The contract as actually executed gave deceased her own house clear but left the seven thousand dollar mortgage on the part purchased, and as security for the balance of the purchase price gave deceased a trust deed subject to the seven thousand dollar mortgage. This placed deceased in the -position where a foreclosure of the seven thousand dollar first mortgage by some third party might wipe out all her security for the balance of the purchase price. Crandall never saw the final agreement until some time

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after its execution, and he testified that he would not have allowed her to sign such a contract because it provided that her trust deed was to be subsequent to the seven thousand dollar mortgage.