Nunez v. Morgan

Thornton, J. The plaintiff instituted this action against Daniel B. Morgan and Mary A., his wife, to recover possession of a tract of land. The complaint is in the usual form in such actions.

The answer denies that the plaintiff was entitled to the possession of the land in suit, and further denies that the defendants ever unlawfully or wrongfully withheld from the plaintiff the possession of the land.

The defendants by way of defense set up a contract between the plaintiff and defendant Daniel as in equity entitling them to the possession of the land in suit, and in two cross-corn pi a in ts set forth substantially the same contract as entitling them to have the plaintiff holding the legal title to the land convey it to them in execution of such contract. Issue was joined as to the material allegations of the cross-complaints.

The cause was tried, arid the court found the facts as alleged in the cross-complaints, and decreed a specific execution of the contract.

The averments of the cross-complaints set forth the following: That on the twenty-first day of December, 1876, the defendant Daniel, for the consideration of two thousand five hundred dollars, purchased of one J. L. McLaughlin, who was then the owner thereof, the tract of land involved herein; that McLaughlin, on the same day, executed a conveyance of this land to1 the defendant above named; that on the 15th of October, 1874, the premises were mortgaged by McLaughlin to one Porter; that at the same time that the conveyance above mentioned was executed, McLaughlin procured of Porter a release of this land from the lien of this mortgage, which release was duly executed, acknowledged, and re[430]corded; that under the conveyance above mentioned defendants entered into possession of the premises, and have since continuously resided thereon; that on the 13th of September, 1880, Porter commenced an action in the superior court of the proper county for the foreclosure of the mortgage mentioned above against the plaintiff, defendants herein, and others; that in this suit Porter proceeded for a foreclosure against the whole tract mortgaged by McLaughlin to him, and demanded judgment of foreclosure against the tract mentioned herein, as well as the other lands covered by his mortgage; that on the 25th of May, 1882, a judgment of foreclosure was entered against the premises and the other lands proceeded against in the suit, and a sale of such land ordered, which sale was had, at which the plaintiff became the purchaser; that in the early part of May, 1882, and before defendants had answered in the action of Porter for foreclosure, the plaintiff represented to defendant Daniel that he had an arrangement with Porter whereby he was to become the purchaser of the mortgaged land after the mortgage should be foreclosed, and that he, the plaintiff, was interested in having the foreclosure suit pressed as rapidly as possible, and in having the cost and expenses of such suit made as light as possible, and the plaintiff, Nunez, then and there promised to and agreed with defendant Daniel that if this defendant would agree to bear the necessary expenses attending the conveyance to him, and of erecting the line fence between the tract in suit and other lands of Nunez, and if the defendants would file their answer in the suit admitting the allegations of the complaint and permitting judgment of foreclosure to be entered against the land described in the complaint, that Nunez, as soon as he obtained the title to this land, would convey it to defendant Daniel by a good and sufficient deed, and would not attempt to dispossess the defendants thereof; that the foregoing proposition was accepted and agreed to by the