Gunst v. Zimdars

BURROUGHS, P. J.,

pro tem.

This is an appeal by the defendant B. B. Cory from a judgment quieting plaintiff’s title to lot 6 in block 8 of Sunnyside in the city and county of San Francisco. March 11, 1912, the Homeland Company, then a corporation, was the owner of a tract of land of which said lot 6 was a part. On that day the said company

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made, executed, and delivered to one T. 0. Judkins a mortgage covering all of said land, including said lot 6. The said mortgage was recorded in the office of the county recorder of said city and county on March 13, 1912. The real owner of said mortgage and the debt secured thereby was this appellant B. B. Cory. On February 26, 1918, the said mortgage was formally assigned to him by the said Judkins. On March 31, 1913, the Homeland Company entered into a contract of sale with the respondent herein, whereby it agreed to sell to respondent said lot 6, and upon the performance by the latter of certain conditions named therein to convey to him a good and sufficient title thereto, free and clear of all encumbrances. Said contract of sale was duly recorded in the office of the recorder of said city and county on July 16, 1913. The Homeland Company, on October 1, 1915, conveyed its title to all of said property to the defendant Thomas A. Fisher. January 31, 1917, T. C. Judkins commenced an action to foreclose the mortgage against the said Homeland Company, Thomas A. Fisher and this respondent. February 4, 1918, the respondent herein having completed his payments in accordance with the terms of said contract of sale, said Thomas A. Fisher, as the successor in interest of the Homeland Company, on March 23, 1918, made, executed, and delivered to respondent a deed to said lot 6, and said deed was duly recorded April 2, 1918. On January 20, 1920, on motion of counsel for the plaintiff in the said foreclosure suit herein mentioned, the said action was dismissed as against this respondent who, as heretofore said, was a defendant in said action. On January 12, 1920, the said foreclosure proceedings were carried to judgment as against the Homeland Company and Thomas A. Fisher, and on February 17, 1920, the defendant B. B. Cory purchased all of said property under the foreclosure proceedings and on June 11, 1921, received a deed therefor. This action was commenced on January 15, 1923, and the complaint prays a judgment against the Homeland Company and Thomas A. Fisher in the sum of $700, being the amount which it is alleged he paid for said land, and also a judgment against the defendant Cory requiring him to make, execute, and deliver to the plaintiff a deed to said lot of land upon such terms as the court may deem just. The appealing defendant filed his