Packard v. Bird

Appeal from tbe District -Court of the Third District, Santa Clara County.

Action to compel execution of a deed.

In 1864 Bird sold land to Chapman, received his money, bat gave a bond for a deed at Chapman’s request. Cottle attached the land then in Bird’s possession, as the property of Chapman. Bird .answered it was Chapman’s property, but that $750 was due therein. Subsequently admitting he had been paid, Cottle had an execution issued and a sale toot place, Cottle buying in, and subsequently assigning to Packard the respondent, who received a deed and possession, and demanded a deed from Bird which was refused.

The answer and cross-complaint of Bird show that $750 was due, from Chapman to Bird for the land. That when he sold to Chapman he made no deed, but a bond due on demand for a deed. That he took Chapman’s note for $3,297.50, receiving cash, $702.50, the whole consideration being $4,000. Subsequently Bird borrowed $4,000 of Chapman, and gave his note with other signers, secured by mortgage. Thereafter.-Chapman surrendered the note andto.ok C. T. Bird’s (another person), for $702.50, but declined to take up his own note of $3,297.50, as he wished defendant to hold it and the land, as he, defendant was to aid with advances, in the settlement of a divorce suit, between Chapman and wife, in which suit Bird did thereafter become security to the wife, Hannah Chapman, for $2,000, which when due, he paid, and held the land as security. The $2,000 he alleges has never been repaid. Subsequently Hannah Chapman sued Bird for the $4,000 note, claiming that John Chapman, co-defendant, had assigned it to her when she was a femme sole, and to foreclose the mortgage. John Bacon-also brought a similar action. Bird answered in both, afterwards, Chapman denying that be bad ever bought the land' of Bird, and denying that be bad Bird’s bond for a deed; and claiming that Bird owed him borrowed money, defendant Bird negotiated for a settlement, and agreed with Cottle, with the knowledge of Packard, respondent, that Bird should pay Cottle $500 to release the land from the attachment; but as the bond might come to light and trouble Bird, it was agreed, of which Packard had knowledge and notice, —between Cottle and Bird, that a sale of the land should be had under execution, to shut out Chapman’s interest at which Cottle should not bid, but Bird should be permitted to buy it in.

That Cottle was agent for Packard who’ acquiesced in this arrangement as appellant believes. Belying on this arrangement, Bird settled the suits, paid Cottle’s attorney $500, and employed him to bid to that amount. At the sale Cottle violated his agreement, bid $1,000, and bought the property; be received the certificate and assigned it to respondent Packard, in order to defraud appellant. He prays for judgment that Packard be declared his trustee, and be required to deed the land to appellant on payment of the agreed sum of $500, and costs of sale.