Minor v. Jones

THOMPSON, J. The plaintiff has appealed from a portion of the judgment which was rendered against him in a suit to cancel a deed of conveyance to real property on the ground that it was procured by fraud and to quiet title thereto in him. The findings and judgment are in conflict with the pleadings and with the uncontradicted evidence which was adduced at the trial. The appeal is presented to this court on a bill of exceptions. The defendants failed to take the witness stand in their own behalf or to adduce any evidence in support of their answer. They have also failed to file a brief or appear in this court on appeal.

The complaint alleges that the plaintiff is the owner of two separate tracts of land in Butte County, California, of the value of $2,800; that the defendants procured the plaintiff and his wife to execute a deed of conveyance of these properties to them by the exercise of fraud, and prays for the cancellation of the deed and for a decree quieting title thereto in plaintiff. The answer denies the material allegations of the complaint and affirmatively asserts that the instrument was executed as a grant, bargain and sale deed in consideration of the sum of $2,500 due and owing to them in payment of an agreed attorneys’ fee for services performed. The answer further alleges that the land is worth only $1,000, and prays for a decree quieting title in defendants and for a further judgment in their favor of the sum of $1500. Neither party asks the court to construe the deed as a mortgage to secure a lien for the payment of counsel fees, or otherwise. That relief ivas not demanded [186]by either party to the suit. It was not an issue in the ease. The court adopted findings to the effect that the plaintiff is the owner of the land in question; that the execution of the deed was procured “through inadvertence and misunderstanding”; that the plaintiffs had knowledge of the nature of the deed which they executed, and that it was the intention of the parties thereto to thereby execute a mortgage on one of the tracts of land, instead of a deed, to secure the payment of $150 attorneys’ fees due to the defendants. The court thereupon rendered judgment against the plaintiff, declaring the deed is a mortgage to secure a lien on lots 3 and 6 of block 90 of the Palermo Citrus Tract of Butte County, California, according to the map thereof on file in the office of the county recorder of that county. Prom that judgment the plaintiff has appealed. The respondents neither adduced evidence on their own behalf nor have they filed a brief or made any appearance on appeal. Evidently they concede the findings and judgment are in conflict with the pleadings and with the uncontradicted evidence of the case.