Fairchild v. Mullan

Temple, C. — The defendants Mullan and Randall take this appeal from the judgment and an order refusing them a new trial.

The action is brought by the executrix of A. A. Ritchie, deceased, to quiet title to a tract of land in Lake County, and to have it adjudged that the defendants have no right to purchase under a contract made with Ritchie October 19, 1877. Defendants Nougues and Williams filed a disclaimer. The judgment quiets the title absolutely against all of the defendants, except Mullan, and permits him to complete the purchase within ninety days by paying certain moneys, and failing so to do, cuts off all claim on his part.

On the nineteenth day of October, 1877, Ritchie executed to Mullan a bond, by which he agreed to convey to Mullan the land on or before May 5,1882, for forty thousand dollars. It recites the payment of ten thousand dollars, but it appears that only three thousand dollars was actually paid at the time.

The next day, October 20,1877, Mullan, Nougues, Randall, and Williams entered into a written agreement, which begins as follows: —

“ Whereas, on the nineteenth day of October, 1877., A. A. Ritchie, of Lake County, California, did, in a bond, obligate himself to deed and convey to John Mullan, of San Francisco, California, his certain property situate in the county of Lake, and state of California, and which property is specifically set forth and particularly described in said bond, and to which reference is herein made, and said bond is hereby made a part of this instrument, — therefore, the object of this agreement is to witness and to declare that said property is by said John [192]Mullan held in trust and for the parties hereinafter named and in the manner and for the purposes hereinafter stated, and not otherwise, to wit: One fifth part thereof for A. A. Ritchie, of Lake County, California, and one fifth part thereof for Henry F. Williams, one fifth part thereof for Joseph M. Hougues, one fifth part thereof for P. M. Randall, and one fifth part thereof for John Mullan, all of San Francisco, California, so that each of said five named parties shall be mutually interested in each and all and every part and parcel of the aforenamed and described property. It being mutually understood and agreed, however, between the parties thereto that the interest of each of said parties in and to tbe aforesaid property shall be and is in direct proportion to the amount of money paid and to be paid by each of the aforesaid parties to A. A. Ritchie on account of the purchase-money in making and securing the purchase of said property, and not otherwise.”