Barnhart v. Edwards

HARRISON, J. E. C. Vancil, the intestate of the defendant Edwards, executed to the plaintiff, April 23, 1879, a conveyance of certain lands in the county of San Joaquin, as a security for the payment to him of certain sums of money. The transaction was evidenced by a conveyance absolute in form, and a separate defeasance in the nature of an agreement for the sale of said land to the grantor for the considerations therein named. These considerations consisted, however, entirely of moneys paid out or expended by the plaintiff, and the conveyance of the lands to the plaintiff was intended only as a security for their repayment. The present action is in the nature of a foreclosure, and was brought to obtain judgment against the estate of the grantor for the amount of such payments alleged to be still unpaid, and for the sale of the land in satisfaction thereof. The defendant Mordecai A. Vancil is the son of E. C. Vancil, but is also known by the name of John T. Davis, and under that name has appealed from the judgment rendered in favor of the plaintiff, and also from an order denying his motion for a new trial. The appeal from the judgment was heretofore dismissed upon the motion of the respondent (111 Cal. 428, 44 Pac. 160), leaving only the appeal from the order to be considered. The grounds upon which the appellant urges a reversal of the order are that the court erred in holding that certain advances made to him by the plaintiff were secured by the mortgage, and also that certain items were chargeable against the plaintiff in his account with the mortgagee, and should have been deducted from the advances made by him for which the security was given.

1. The advances of the plaintiff which the appellant conténds are not secured by the mortgage consist of four items, viz.: The sum of $100, paid to Hughes, April 25, 1879, at the request of Davis, upon the claim that it was owed by him; $250, paid to Davis, June 7,1880, for which he gave the plaintiff the note of E. C. Vancil; $100, paid to Davis on his note, April 22, 1881; and $291.60, paid for a note of Davis, pur[560]chased from Long, August 2, 1881. The sums of money for whose repayment the security was given, as expressed in the instrument of defeasance, are the following: The $2,300 named in the deed of conveyance as its consideration, and which was used in paying certain debts against Davis in the city of Stockton; a note for $2,500 that had been executed by Davis to the plaintiff, and for which certain wheat had been pledged as security; the costs and expenses, including attorneys’ fees, incurred, and that might be incurred, in certain litigation concerning said wheat; and all taxes that the plaintiff should pay on the land. It is very clear that any moneys that might be thereafter paid to Davis, or advanced by the plaintiff for his benefit, are not included in these items, or in the purpose for which the security, as expressed in the instrument, was given. It was, however, contended by the plaintiff that there was a parol agreement between the parties to the transaction that it should be security for such advances as the plaintiff might thereafter make to Davis; and, against the objection of defendants, evidence was introduced for the purpose of sustaining this contention. That such evidence was improperly admitted is evident from the provisions of section 2922 of the Civil Code, as well as from the general rule that parties to a written instrument are presumed to have incorporated therein all the terms of their agreement, and that its contents cannot be varied by parol. But, irrespective of this rule, we are of the opinion that the plaintiff failed to show that it was intended by the parties that these advances should be secured by the instrument. Judge Budd, by whom the instrument was drawn, testified that, as far as he could remember, he embodied therein all the agreements of the parties as they were stated to him, and that the instruments were read and explained to them before they were signed; and he was unable to say that they gave him any instruction that the mortgage was to be security for subsequent advances to Davis. Davis himself was not present at Budd’s office when the instruments were drawn, and the plaintiff testified that he helped dictate the deed and heard the agreement read after it was prepared, and that no dissatisfaction was expressed; and he does not testify that it was agreed, or that it was the intention of the parties, that it should be a security for such advances. The effect of the instrument could not be changed by any subsequent parol declaration by Vancil’s attorney of