Ebel v. Chandler

Fitzgerald, C. This action was brought to recover the sum of $2,914, for money alleged to have been laid out and expended by plaintiffs for and on behalf of defendant, at the defendant’s special instance and request, and which he promised to repay to plaintiffs.

A demurrer was interposed to the-complaint, which was properly overruled, and thereupon defendant answered by a general denial. Plaintiffs had judgment, and defendant appeals from the judgment and the order denying his motion for a new trial.

The facts are, substantially, as follows: On December 29, 1884, plaintiffs purchased of defendant certain land, and received from him a grant deed therefor. The land was at the time encumbered by a mortgage, executed by the defendant to one Margaret Poorman, which he agreed with plaintiffs to pay and discharge. This he failed to do, and the mortgage, which embraced other lands belonging to the defendant in the city and county of Sacramento, was subsequently foreclosed in an action brought by the mortgagee against the defendant, and upon the decree of foreclosure therein rendered, an order of sale was duly issued, and the land advertised to be sold on the twenty-sixth day of November, 1887.

The sale was afterwards postponed to December 10, [374188]7, by direction of the mortgagee’s attorney, at the request of the defendant, and upon his agreeing, in writing, to the effect that if the sale was postponed, “ he would endeavor to raise the money and pay off the judgment.”

The defendant having failed to comply with his agreement, the land was sold on said last-mentioned date by the sheriff, under said order of sale, to one Edward McGary, a brother-in-law of Poorman.

Plaintiffs, at different times subsequent to the day of sale, called on the defendant, and urged him to pay the money and redeem the property, which he agreed to do; and on the day before the time for redemption expired, they called to see him, and told him that as he had not paid the money and redeemed the property, as he had agreed with them to do, that they would have to protect themselves by raising the money and redeeming the property, to which he responded, “All right.”

The land, which was unimproved at the time of the purchase, was thereafter greatly enhanced in value by plaintiffs setting it out in orchard and vineyard and fencing it, and by the erection of a house and other valuable improvements thereon.