Gard v. Gard

Henshaw, J. Appeal from the judgment rendered after demurrer sustained, and plaintiff’s refusal to amend.

The action is to have declared and enforced a vendor’s lien upon land conveyed by plaintiff under the following state of facts disclosed by the complaint. In 1890, plaintiff, an old man, executed and delivered a deed of the land, all the property he owned, to his son, for the named consideration of nine hundred and fifty dollars-. It was agreed that as between themselves the deed should not be operative until the mode, manner, and time of payment should at some indefinite future date be agreed upon. Plaintiff remained in possession of the land and exercised full dominion over it after the making of the deed until 1893, when the defendant took possession and control of the land under the following agreement: “For value received from Jacob Gard, Sr., I, Jacob Gard, Jr., hereby covenant, promise, and agree to pay to said Jacob Gard, Sr., monthly during his natural life, three-fourths of all sums by me received for rent of the premises known as the ‘ Seven Mile House,’ situate on the public highway leading from Marysville to Browm’s valley, in Yuba county, state of California, and designated and described in a certain indenture of deed bearing date May 6, 1890, made and delivered by said Jacob Gard, Sr., as grantor, to myself as grantee, and recorded in volume 39 of deeds, records of Yuba county, at pages 153 and following, which said premises are now under lease to one George J. Crossley at the monthly rental of twenty dollars. And in case I should occupjr said premises myself, instead of renting the same, then, and in' such case, I covenant to pay the said Jacob Gard, Sr.,' [22]the "sum of fifteen dollars monthly during his natural life. Said sums to be paid monthly on the fifteenth day of each and every month at the Northern California Bank of Savings, Marysville, California, to the credit of said Jacob Gard, Sr.

[signed] “ Jacob Gard, Jr.”

A short time after the date of this agreement defendant entered into the personal occupancy of the premises and has ever since continued in such occupancy. He has failed after demand to comply with his agreement, and has refused to pay to plaintiff the monthly sum of fifteen dollars or any other sum. His wife, with knowledge of all the facts, has placed a homestead upon the property. The defendant son has no property except that so acquired from the father, and the father, eighty years old, feeble and decrepit, has no means of subsistence unless the sum of fifteen dollars a month can be made a charge upon the property.