Kent v. Williams

McFarland, J. Judgment was rendered for plaintiffs, but, on motion of the defendant the San Francisco Savings Union, a new trial was granted. From the order granting a new trial the plaintiffs appealed. The action was brought to foreclose what is alleged to be a mortgage executed by the defendant Williams to the plaintiffs upon certain property in Fresno county. The main facts in the case are these: On the twelfth day of April, 1888, the plaintiffs, being the owners of certain real property in Oakland, Alameda county, made a written contract with defendant Williams, by which they [540]agreed to sell him said property for the sum of twenty-two thousand five hundred dollars, for which Williams gave them his note, payable on or before April 12,1891, and plaintiffs agreed to give to said Williams a conveyance of said property upon the payment of the full amount of said note. The said written contract contains this clause: “The said party of the second part [Williams] agrees to deposit with the First National Bank of Oakland, California, a deed in escrow in favor of said parties of the first part, of an undivided one-quarter interest in seventeen hundred and thirty acres, covering the greater portions of sections 21, 28, and 33, in township 13 south, range 23 east, in Fresno county, California, and apply the proceeds of all sales of said land to the payment of said promissory note.” Williams paid five hundred dollars upon said note, and by agreement of the parties went into possession of the said property in Oakland, agreeing to pay for the use of the same, sixty dollars a month until the note was paid. He afterward failed to pay any other portion of the note, abandoned possession of the said property in Oakland, and became insolvent. This action is brought to enforce what plaintiffs claim to be a lien on the lands in Fresno county for the payment of said note, without any offer to first enforce any lien which they may have upon said property in Oakland. The said written contract was recorded in Fresno county; and it appears as a fact that the said deed which Williams agreed to execute was executed and deposited with the said First National Bank in escrow, and was afterward delivered by said bank to the plaintiffs. After the recording of said contract, but before the recording of said escrow deed, and on the tenth day of January, 1889, the defendant Williams with others borrowed from the defendant, the San Francisco Savings Union, the sum of sixteen thousand dollars, and, as security therefor, executed to said Savings Union a deed of trust upon certain specifically described lands in Fresno county, which [541]