Green v. Thornton

Belcher, C. —This is an action to recover the sum of $1,112.70, with interest thereon, alleged to be due plaintiff from defendant upon an account stated.

The material facts of the case are as follows: In 1881, L. D. Green, plaintiff’s intestate, and the defendant purchased and had conveyed to them a certain tract of land. They paid for the land four thousand dollars, and to raise the money they borrowed from the Stockton Savings and Loan Society the sum of three thousand five hundred dollars, for which they gave to the society their promissory note, secured by a trust deed of the property. Thereafter Green occupied and managed the land until October 25, 1884, when they sold and conveyed the same to one C. H. Bailey for six thousand five hundred dollars. Of this sum Bailey paid to his grantors at the time one thousand dollars in money, and for the balance he gave them his promissory note for two thousand five hundred dollars, bearing interest at the rate of eight per cent per annum, and due two years after date, and a mortgage on the land to secure its payment, and undertook and agreed to pay the grantor’s note to the Stockton Savings and Loan Society, on which there was then due and unpaid the sum of three thousand dollars.

In November, 1886, Green died, intestate, and in December following, the plaintiff, his surviving wife, was duly appointed administatrix of his estate, and entered upon the discharge of her duties as such.

[69]On the fifteenth of November, 1887, Bailey filed in the court having jurisdiction of the estate his petition, stating, among other things, that by reason of some inadvertence or error the deed executed to him by Thornton and Green had never been recorded and was lost, and that by reason of such loss he had no evidence of his title to the land purchased; that Thornton was ready and willing to execute and deliver to him a deed conveying all his interest in the said land; and that Mrs. Green, as administratrix, was ready and willing to convey to him all the interest of the estate in the said land, if she should be authorized so to do by the court. Wherefore he prayed that after notice and a full hearing as to the facts, a decree be made and entered authorizing and directing Mrs. Green, as administatrix, to execute to him a conveyance of all the right, title, and interest of the said L. D. Green, deceased, and of his estate in and to the said land.

Afterwards the matter came on for hearing, and on January 7, 1888, by consent of Mrs. Green, expressed in open court by her attorney, a decree was entered authorizing and directing her to execute to Bailey the conveyance asked for, and to release one half of the mortgage upon said land, “ upon payment to her, as administratrix of the estate of L. D. Green, deceased, of the sum of $1,112.70, being one half of the sum now due and unpaid upon ” said mortgage. The decree further directed that Bailey, before the delivery of the deed, execute and deliver to the administratrix and Thornton a written contract that he would pay the moneys due the Stockton Savings and Loan Society, as evidenced by the trust deed before mentioned. The clause above quoted was not in the decree, as it was drawn up by the attorney for petitioner, but was written in before it was signed by the attorney for Mrs. Green.