Jeanson v. Zangl

STURTEYANT, J.

—The plaintiffs commenced an action to obtain a decree restraining and enjoining a sale of real estate under a deed of trust. From a judgment in favor of the defendants, the plaintiffs have appealed.

On February 8, 1927, the plaintiffs bought from the defendant Robt. Zangl a herd of cows. The parties executed a written conditional sales contract evidencing the purchase. That instrument refers to a trust deed as being made as security tlieréof. On the same day the plaintiffs as trustors, Geo. E. Kennedy as trustee, and Robert Zangl executed a trust deed involving certain real estate. That deed refers to the document mentioned above and recites that the deed of trust is given to secure the performance of the conditional sales contract. On the same day the plaintiffs executed their promissory note in the sum of $7,652, the balance due on the sales price. It is a demand note made payable to Robert Zangl. A copy is set forth in the deed of trust. The cows were delivered to the plaintiffs

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and soon thereafter Robert Zangl sold his contract to the defendant Seaboard Acceptance Company. Among others, the conditional sales contract contained the following passages:

“This agreement, made this 8th day of February, A. D. 1927, between Robt. Zangl party of the first part, and R. H. Jeanson, party of the second part. . . .

“Witnesseth, That the party of the first part, in consideration of the sum of 7652.00 Dollars to be fully paid as herein provided, and upon the terms and conditions hereinafter named, agrees to sell to the party of the second part, the following property, to-wit: 40 Head Dairy Cows described as follows: (detailed description of 40 Head of Cows omitted).

“As security for this lease contract, R. H. Jeanson are placing a Trust Deed for $7652.00 in favor of Robert Zangl, which Robert Zangl is assigning to Seaboard Acceptance Company, and it is understood and agreed that this trust deed shall remain as security, and should said R. IT. Jeanson default in any payment of principal and interest under this lease contract, or violate any of the terms and conditions provided therein, such default would automatically cause the above described Deed of Trust to become due and payable in one sum, but at the time final payment has been made under this lease contract, it is agreed that Trust Deed is also to be released. Also all the heifer increase from above animals. And the party of the second part agrees to purchase said property at the sum of $7652.00 and pay the same as follows :$.... in cash upon the execution of this agreement, and the balance of $7652.00 in 12 equal monthly installments of $200.00 each payable at Los Angeles as follows: on the 15th day of each and every month until Feby. 15, 1928, inclusive, when balance becomes due and payable. First installment to be made March 15th with interest from date on all deferred payments at the rate of 8 per cent per annum, payable monthly. . . .