Travelli v. Bowman

McFARLAND, J.

This action was brought against M. S. Bowman, administrator of the estate of George R. Senior, deceased, to obtain a judgment reforming the description of land in a certain deed of trust. Judgment went for plaintiffs, in accordance with the prayer of the complaint, and from the judgment and from an order denying his motion for a new trial the defendant appeals.

The main features of the case are these: In March, 1896, George R. Senior, sincé deceased, was, and for a long time prior thereto had been, indebted to the plaintiff Travelli in a large sum of money, secured by a mortgage on certain real property situated in the county of Riverside. The debt secured by the mortgage was about to be outlawed when the plaintiff Travelli, who lived in Massachusetts, employed the

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plaintiff Withington, a lawyer practicing in San Diego, California, to look after his claim against Senior and make some disposition of it. Withington went to Riverside and had an interview with Senior, and it was finally agreed that Senior should make a new note to Travelli for eighteen thousand dollars and give a deed of trust to Withington to secure the payment of the same, and that the mortgage should be discharged. Withington went back to San Diego and had a draft of the note and deed of trust prepared, which he gave to one Carter, who was a clerk in his office, to copy. When Carter presented the deed to Withington the latter discovered that he had described the land as in San Bernardino County, when in fact it was in Riverside. He told Carter to make the correction and to then send the deed on to Senior to be executed, Withington going away from home for a few days. Carter corrected the deed, but unfortunately made another mistake by describing it as in San Diego County. He sent it on to Senior, by whom it was executed and returned to Carter. Carter had been instructed by Withington to send the deed on to Travelli in Massachusetts, but for some reason this was not done, and the deed was left among the papers in Withington’s office. There was also another defect in the description. Withington did not see the deed or know of the misdescription until after the death of Senior, which occurred on or about the 10th of July, 1903. Upon the death of Senior, Withington commenced to look for papers connected with the business between Senior and Travelli, and found the deed in his office, and noticed for the first time the misdescription. This action was commenced within a month after the discovery of the mistaken description. At the time of the commencement of this suit the said note of Senior to Travelli had been outlawed for the period of about a month. Appellant pleaded the several provisions of the code touching the limitations of actions.