Porter v. Johnson

SHAW, J.

The defendant appeals from the judgment, and from an order denying her motion for new trial.

The complaint states a cause of action to recover possession of a lot in Los Angeles. The defendant was formerly the owner of the lot. The plaintiff derives title under a deed executed by the defendant conveying the lot to the Maine Building and Investment Company, dated July 19, 1911, and a subsequent deed from the investment company to the plaintiff.

The defendant’s claim is that the deed executed by her to the investment company was made to secure the company in the repayment of money expended by it on her behalf in the erection of a house on the premises, and that the legal effect

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of the transaction was to create only a mortgage in favor of said investment company. After the execution of the deed to the investment company, that company executed to the defendant a contract for the sale of the property from the company to the defendant for the price of $7,150, payable in installments of fifty dollars a month until three thousand five hundred dollars should be paid, whereupon the company was to reconvey the property to the defendant and take back a mortgage for the remainder of the price.

In reply to this the plaintiff’s contention was that the defendant was wholly unable to pay the installments due upon the contract to the investment company, or otherwise to comply with the terms thereof, and that she requested the investment company to take the property off her hands, and relieve her of the burden thereof, and authorized and empowered it to sell and convey the same, apply the proceeds on the indebtedness for the erection of -the house and pay the surplus, if any, to the defendant; that in pursuance of said request and authority, and with the acquiescence and consent of the defendant, the investment company, on March 19, 1912, sold and conveyed the said property to the plaintiff, that the plaintiff was informed by defendant that she consented to said sale, and was not informed of any claim or interest in said real estate on the part of the defendant other than that shown by the deed and contract, but believed that the investment company was the owner of the title in fee and was authorized to sell the same free from defendant’s claims under the contract, and that he purchased the property and paid the price therefor in good faith and without knowledge of any right or claim of plaintiff.