Ward v. Matthews

Foote, C. This appeal is from an order denying plaintiff a new trial, and from an order made after final judgment, denying his motion for judgment as prayed for in his complaint.

The action was brought by the plaintiff for the recovery of the possession of a certain tract of land, and damages for its detention. The defendant answered, denying all the allegations of the complaint, and setting up facts which went to show him entitled in equity to the title and possession of the land in controversy, which title he claimed the plaintiff held merely in trust for him. The findings of fact were as follows: —

1. That in May, 1880, the land described in the. pleadings herein was the property of the Central Pacific Railroad, and that at said time the defendant made application to said company to be permitted to purchase the same. .

2. That in June, 1881, the said company recognized the right of the defendant to purchase said land, and at that time agreed with said defendant that, upon the payment by said defendant to it of the sum of $225.28, on or before the eighth day of July, 1881, it, the said company, would execute to said defendant a contract of sale of said land.

3. That by the terms of said contract, the said defendant would have five years from and after the eighth day of July, 1881, in which to make payment of the balance of the purchase price of said land, upon the payment annually in advance of the interest on the deferred payment.

4. That on or about the fifth day of July, 1881, the said plaintiff paid said railroad company, for the use and benefit of said defendant, the said sum of $225.28, and at that time it was verbally agreed by and between said plaintiff and defendant that the contract of sale should be taken in the name of said plaintiff, to be held by him as security for the repayment to him by said de[15]fend ant of the said sum of $225.28, with interest thereon at the rate of one and one fourth per cent per month; and it was also agreed between said parties that said sum, with the accrued interest, should be repaid in one year.

5. That the contract of sale of said land was made to said plaintiff by said railroad company.

6. That before the expiration of the year in which payment of the said sum of $225.28, with accrued interest, was to be made, the plaintiff, at the request of the defendant, extended said time of payment six months.