Rousset v. Green

Department No. 2, Myrick, J.: The facts in this case are quite numerous, and are detailed at length in the transcript on file. From the view we take of this [138]case it will not be necessary to state them at length. We shall confine ourselves to such as are material.

On and before the 6th day of MarchÍ 1867, the defendant, Green, and his wife, Arabella, were residing upon a tract of land, without title other than possession. December 7th, 1866, a judgment had been docketed against Green in favor of one Murphy for some $10,000, upon which judgment on the 14th of September, 1868, there was a balance due of $3,775.54, with interest thereon from September 3rd, 1866, at the rate of two and one-half per cent, per month, which had been assigned to and was .held by Patterson. March 6th, 1867, Mahoney executed to Felton and Brooks a deed conveying an undivided interest in the Rancho Laguna Merced, equal to eight acres. The residence, and a portion of the claim described in the homestead claim hereinafter mentioned, were within the boundaries of said rancho. March 19th, 1867, Felton and Brooks conveyed to Susan Murphy the same interest they had acquired by the deed from Mahoney. March 18th, 1867, Susan Murphy contracted in writing to convey to Daniel Green two parcels of land, viz: an undivided one-fourth of a parcel of land known as the Southworth tract; also an undivided interest in the Rancho Laguna Merced, equal to eight acres, together with the improvements which had been theretofore occupied by, and were in possession of said Daniel Green; upon the payment of $4,000, and interest. March 18th, 1868, Susan Murphy conveyed to Patterson all her interest in the two parcels. March 28th, 1867, Green caused to be filed a declaration of homestead upon a tract of land which included the premises upon which he resided with his family. August 19th, 1868, Daniel Green assigned to plaintiff all his interest in the Susan Murphy contract. August 21st, 1868, Patterson sued out an execution on the judgment held by him, and advertised the premises to be sold September 14th, 1868. On that day an agreement in writing was made between plaintiff and defendant Green, by which, among other things, Green conveyed to plaintiff said undivided interest, equal to eight acres, with said improvements, to hold the same as security for certain moneys, including the $4,000 and interest due on said Murphy contract; and [139]