Beall v. Fisher

Vanclief, C. On May 12, 1890, plaintiff was the owner of 320 acres of land situated in the county of Fresno, subject to a mortgage to secure his debt to the mortgagee, then amounting — principal and interest — to about $5,700. At the same time defendant owned 1,010 acres of land situated in Tulare County, subject to [569]a mortgage to secure his debt for the principal sum of $6,060, on which had then accrued about $118 interest.

On that day verbal negotiations were commenced between plaintiff and defendant for an exchange of their lands, and proceeded so far that they supposed they understood each other as to the terms upon which the exchange was to be made. About ten days thereafter (May 22d), they met at the office of Mr. L. L. Cory, an attorney at law and notary public, for the purpose of executing the deeds and other writings necessary to effect the exchange. Nothing of their previous negotiations had been reduced to writing. Mr. Cory drew the deeds and other papers, which were then executed, consisting of a deed from plaintiff to defendant of the land in Fresno County, subject to the mortgage above mentioned, which mortgage the defendant by the terms of the deed assumed and agreed to pay; also a deed from defendant to plaintiff of defendant’s land in Tulare County, which deed contained the following: “ This grant is made subject to a mortgage for $6,060 to the California Savings and Loan Society, which the grantee assumes and agrees to pay,” and also a promissory note of defendant to plaintiff for $3,000, to secure which defendant executed to plaintiff a mortgage on the land in Fresno County which had been conveyed to him by the plaintiff.

This action is founded upon what is alleged to have been the verbal agreement on May 12, 1890. Plaintiff alleges that the verbal agreement was to the effect that the defendant was to pay the interest upon his mortgage on the Tulare County land up to the date when the deeds should be executed, and also “ to pay said plaintiff upon the day when said conveyance and exchange should be made, as one of the considerations for said exchange, the sum of $360, the difference between $5,700, amount of mortgage upon plaintiff’s land, and $6,060, amount of mortgage upon said defendant’s land.” Plaintiff also claims that defendant is indebted to him in the sum of twenty dollars, for interest on the note and mortgage [570]