Barroilhet v. Anspacher

Belcher, C. C. This is an action to quiet title to a block of land known as block No. 5, in the town of Livermore, in Alameda County.

By their answer, the defendants set up the statute of limitations, and then certain facts under which they claimed that the plaintiff held the title to the land in trust for them.

The case was tried and j udgment rendered in favor of the plaintiff, and the appeal is from that judgment and an order denying a motion for new trial.

The facts out of which the case arose are as follows: In March, 1875, A. D. Splivalo owned this block No. 5, and other parcels of land in Alameda County. E. M. Derby had a judgment against Splivalo for $347.30, which was a lien upon all such lands.

The defendants, Philip and Simon Anspacher, wished to purchase block No. 5 for eighteen hundred dollars, but desired that it should he first released from the lien of this judgment. Thereupon Splivalo, the Anspachers, Derby, and E. B. Mastick, his attorney, had a conference, at which Derby virtually agreed to release block No. 5 from the lien of his judgment upon the payment to him of $150. The Anspachers then paid Splivalo the purchase price of the block, — eighteen hundred dollars, — [118]took a deed of it, dated March 17, 1875, and at once went into possession, and have been in possession of it ever since. Splivalo afterwards paid Derby the $150, but instead of releasing the block from the lien, he simply credited the money upon his judgment.

In August, 1875, an execution was issued on the judgment, and on the twenty-second day of November following, the block in question and eight other blocks of land in the town of Livermore were sold thereunder, and bid in by Derby in satisfaction of the amount still remaining due on his judgment.

In May, 1876, just before the time for redemption expired, Splivalo, Anspacher, Pardini (who was interested in one of the blocks sold), and Derby, met at Mas-tick’s office to discuss the situation. It was found that the amount of money necessary to redeem all the property sold was $412, and it was agreed that Anspacher’s block No. 5, Pardini’s block, and one or two other blocks should be redeemed or released from the sale. As the most convenient way of effecting this release, it was suggested that the title to all the property sold be put in the name of the plaintiff, and that he then make the deeds of release. This was agreed to, and thereupon Splivalo and Mastick went to see the plaintiff about it. Splivalo informed the plaintiff how they proposed to put the title to the property in his name, how many blocks had been sold, and that block No. 5 and three other blocks were to be deeded over by him to the parties to whom fhey really belonged, and whose names were given to him. The plaintiff replied, “Do whatever you please,” and then agreed to deed the blocks over as requested. After this interview, and on the twenty-seventh day of May, Splivalo drew his check for $412 on the plaintiff, who was a banker, and with whom he already had an overdrawn account, and then went with the check to the plaintiff’s bank and drew the money on it, the money so drawn being charged up to his account. Splivalo then went back to Mastick’s