Iknoian v. Winter

TYLER, P. J.

Action to quiet title. On July 9, 1919, defendants Karl Winter and Mary, his wife, were the owners of certain lots in Sanger Colony in the county of Fresno. The property was subject to a purchase price mortgage in favor of Mary M. Barbour for $7,800. On the date last mentioned Winter and his wife entered into a contract with the plaintiffs for the sale to them of the property for the sum of $10,000, the terms being $1,000 cash; $1,000 and interest on or before November 1, 1920; $1,000 and interest on or before November 1, 1921, and a like sum and interest on or before November 1, 1922; $5,000 and interest on or before November 1, 1923, and the balance of $1,000 and interest on or before November 1, 1924. The parties agreed that the purchasers might make any of the payments agreed to be made, upon and towards the payment of said mortgage, and when so paid the amount would be credited upon the purchase price. The evidence shows that plaintiffs paid Winter the sum of $4,000 in conformity with the terms of the contract and at the time the last payment of $1,000-was made Winter only had coming to him the sum of $200 on the principal over and above the existing mortgage; that he received this $1,000 from plaintiffs and paid $800 of the same on the mortgage and informed plaintiffs that all future payments were to be made to the mortgagee or her representative as he had been fully paid for whatever interest he held in the property. Plaintiffs then asked for a deed. Winter informed them he was busy at that time, but would execute one later. The deed was finally executed March 28, 1925. The evidence further shows that all subsequent payments were made by plaintiffs to the mortgagee in conformity with the agreement of the parties. At or about the time Winter received his last payment he was in financial difficulties. On the tenth day of January, 1923,'

[225]

appellant G. H. Salwasser in an action brought against Winter attached the land in question. Salwasser obtained judgment against Winter in the sum of §2,690 and thereafter he assigned an undivided one-half interest in such judgment to Philip Conley and an undivided one-half interest to J. W. Meux, appellants herein. The present action to quiet title to the land was brought by plaintiffs against Winter, his wife; the Commercial Bank of Sanger, which had a separate claim; G. H. Salwasser, Philip Conley, and J. W. Meux.