Cory v. Santa Ynez Land & Improvement Co.

BEATTY, C. J.

This is an action of trespass, in which the plaintiff recovered a judgment for $368.50 and costs. The corporation defendant appealed to the district court of appeal from the judgment and from an order denying a new trial. The justices of that court having been unable to agree as to the proper disposition of the appeal, the cause was transferred to this court for hearing and decision.

It appears from the pleadings and the uncontradicted evidence in the record that prior to the 28th of January, 1888, the appellant had subdivided a large tract of land in Santa Barbara County, and that on that date it conveyed to J. S. Shoemaker,—then a resident of Reno, Nevada,—a subdivision known as lot No. 13, containing forty acres. The agreed price of the lot was three thousand dollars, of which one thousand dollars were paid at the date of the conveyance. For the balance Shoemaker executed two promissory notes for one thousand dollars each, payable, respectively, January 20, 1900, and January 20, 1901, and secured by mortgage of the land.

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Shoemaker leased the land to tenants, who occupied it until the year 1892. In the mean time he had paid no part of the principal or interest of the two purchase-money notes, and in May, 1893, they had been placed in the hands of defendant Robinson for foreclosure. He, as agent and attorney for the appellant, agreed with Shoemaker at that time to cancel the first note and to remit the accrued interest on both notes, amounting to four hundred and eighty dollars, upon the agreement of the latter to pay the second note in the course of eight or ten months. This agreement was ratified by the corporation and the first note canceled. Robinson testifies that it was at the same time agreed by Shoemaker that appellant' should have and maintain possession of the mortgaged premises until the remaining note was paid. Shoemaker denies that he made any such agreement, but the undisputed fact is that the corporation, through its agents, took possession of the lot about that time, and for fully ten years kept the undisputed possession through tenants rendering rent to it. It is also an undisputed fact that the appellant permitted the second note to become barred by the statute of limitations on January 20, 1895, without any attempt to foreclose, and that afterwards, on February 27, 1895, Shoemaker gave a'new mortgage to secure a new note for one thousand and fifty dollars, the amount of the second note and accrued interest. At the date of this new note and mortgage the appellant was in the peaceable and undisputed possession of the land. No part of the principal of this renewal note was ever paid, and only part of the interest. In August, 1899, the right to foreclose was barred. But the corporation had been in possession all the time by its tenants and in receipt of the rents, and as its mortgage interest exceeded the assessed value of the land, it paid all the taxes. Matters remained in this posture until 1901, when the appellant directed the assessor to omit any further mention of the mortgage, and to assess the land to it as a part of the larger tract of which it was a subdivision. In 1902 Shoemaker had the land assessed in his name, but down to the trial of this action in 1905 the appellant had paid all the taxes. In view of these facts it is difficult to believe that Shoemaker did not expressly agree, as testified by Robinson, that appellant should take and hold possession of the land, and it cannot be doubted that there