MacKey v. Bridge

RICHARDS, J.

This is an appeal from a judgment ip favor of the defendant. The action is one to have it declared that a relation of trust existed between one Wm. H. Nelson, the predecessor in interest of the plaintiff, and the defendant, in relation to the ownership and sale of a certain piece of real estate, upon which the plaintiff predicates his demand for an accounting and division of the proceeds of the sale of said real estate.

[233]

[1]

The facts of the ease are substantially these: In the latter part of the year 1906 Wm. H. Nelson was the owner of a certain tract of land in Tuba County, California, upon which there were two outstanding encumbrances. The first of these was a mortgage to one Catkins, securing a note then due from said Nelson to the mortgagee for the sum of fifteen thousand five hundred dollars, together with $1,017.10 overdue interest. The second encumbrance was in the form of a deed of trust to IT. S. Bridge, the defendant herein, securing an indebtedness of four thousand six hundred dollars due by said Nelson to the wife of said Bridge, which was also with considerable interest overdue. An action had been commenced to foreclose the Catkins mortgage, in which said Nelson had made no appearance and was in default, and in which also the Bridges, husband and wife, having been made parties, had defaulted. The real estate thus affected had been suffered by the mortgagor to be much neglected and out of repair, while the taxes upon the same had for some time been unpaid. Wldle things were in this desperate and deplorable condition, one Herman Murphy, who had been the agent of Nelson in negotiating the loan from the Bridges, had an interview with the defendant, H. S. Bridge, in an endeavor, apparently, to save something out of the impending wreck of Nelson’s fortunes, as a result of which said Bridge and Murphy prepared the following letter:

“San Francisco, Nov. 26, 1906.

“Mr. Wm. H. Nelson,

“Dear Sir:—

“In consideration of your deeding me the ranch at Horn-cut instead of my selling it under trust deed I hereby agree to endeavor to sell it and agree to give you half the profit beyond cost to me, cost to be estimated as amount of liens now against the property and any advances I may make, said advances to draw interest at 1%% per month.