Murphy v. Murphy

SMITH, C.—

This suit was brought to correct the description in a deed executed by defendants to plaintiff, of date

[472]

October 4, 1898. But it was admitted on the trial by the defendant that the deed correctly described the land which plaintiff claimed it was intended to convey, consisting of certain subdivisions of the southeast and northeast quarters of sections 3 and 10, in the township referred to in the complaint; and, accordingly, it was so found by the court and adjudged that the plaintiff take nothing by his action. There is therefore no question as to the plaintiff’s case.

But in the cross-complaint of the defendants it is alleged, in effect: That some time before the date of the deed referred to in the complaint, the defendant, J. H. Murphy, had conveyed to the plaintiff the other subdivisions of the northeast quarter of section 10 and the southeast quarter of section 3, for the sum of eight hundred and ten dollars; that defendants’ deed of October 4, 1898, was made upon, and in pursuance of, an agreement between the parties, by the terms of which plaintiff agreed to pay a debt of one hundred and eighty dollars, with interest, due from the defendants to the Colusa County Bank, and thereafter to sell the two tracts as a whole for a sum not less than sixteen hundred dollars, and after deducting from the proceeds eight hundred and ten dollars on account of his own land, and the amount paid to the bank, to pay the balance to the defendants; that in pursuance of the agreement the plaintiff paid the amount due to the bank, but has since repudiated the agreement, and now claims the land as his own, and that he is about to ■sell it to a third party for six hundred dollars, and to appropriate the proceeds to his own use. It is further alleged that the defendants before beginning the suit offered to pay plaintiff the amount due for what he had paid to the bank, and all interest thereon, and demanded a conveyance of the land in question, but plaintiff declined the offer; “and that defendants are ready and willing to pay plaintiff the amount he has paid out on account of said piece of land or any sum the court may decree to be just and equitable,” etc. The prayer of the cross-complaint is, that the plaintiff be required to reconvey the land in question to defendants, upon payment by them of the sum paid to the bank by plaintiff, with interest, and for general relief.

The cross-complaint was filed and served April 25, 1901,