Hewlett v. Evans

FINCH, P. J.

The defendants’ demurrer to the complaint, on the ground that the facts stated therein do not constitute a cause of action, was sustained without leave to amend and judgment was thereupon entered in favor of the defendants for costs.

From the allegations of the complaint it appears that on July 27, 1917, the defendants executed and delivered their promissory note for $16,000, payable three years after date, to R. O. Hobson and, as security for the payment thereof, made and delivered to Joseph F. Carlston and Harry A.

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Mosher, as trastee, a deed to certain lands. November 14, 1917, Hobson assigned the note and security to plaintiffs. “On or about the 8th day of July, A. D. 1918, said defendants herein made known to said plaintiffs a claim on the part of said defendants, adverse to said plaintiffs, to a right to redeem the real property described in said deed of trust, upon the payment to them of a sum of money less, to the extent of $7,060.50 than the principal sum of said note, basing such claim upon the fact alleged by them that the consideration of said note had failed to the extent of said sum of $7,060.50; that the claim so asserted by said defendants herein was without any right or foundation whatever, notwithstanding which, however, it affected and clouded the said plaintiffs’ right and title to said land and the merchantability of said note in their hands, and prevented and obstructed their alienation thereof. That on the 18th day of November, 1918, said plaintiffs herein instituted, in the Superior Court of the State of California, in and for the County of Butte, an action, as plaintiffs, against said defendants herein and B. O. Hobson, as defendants, praying for the judgment of the said last named court against all said defendants to the effect that said plaintiffs had a good and valid lien under said deed of trust upon all the said real property therein described, securing the "payment to them of the full amount of said promissory note, and all other moneys stated in and by said deed of trust to be thereby secured.” The defendants appeared and contested the action. The court rendered judgment in favor of the plaintiffs as prayed for. In the prosecution of the action the plaintiffs “were compelled to and did incur and pay sums of money amounting in all to the sum of $492.99. On the 27th day of July, 1920, the defendants paid the plaintiffs the principal and interest of said promissory note but refused to pay the aforesaid expenses of said action.” At that time “it was agreed between said plaintiffs and said defendants that the delivery by said plaintiffs of said note and deed of trust, together with reconveyance of the property described in said deed of trust then and there made to said defendants by said plaintiffs, was and should be without prejudice to said plaintiffs’ claim under said deed of trust to reimbursement of the expenses aforesaid.” It is further alleged that under the terms of the deed of