Rubinstein v. Minchin

KELLY, J., pro tem. — This is an appeal from a judgment of dismissal following an order sustaining a demurrer to the plaintiff’s second amended complaint. Somewhat condensed and summarized, the second amended complaint recites that in the year 1929 the plaintiff and his then wife, since deceased, borrowed the sum of $6,500 from the defendants, evidenced by a promissory note secured by a trust deed on a one-half interest in a certain lot described as number 278; that on December 20, 1932, the plaintiff was in default in the sum of $615 for the payment of which the defendants were pressing, and that to secure payment of the sum in default a deed of trust was executed by the plaintiff on another lot referred to as number 151; that the parties had an oral agreement by which it was stipulated that if the plaintiff would convey lot 151 to the Union Bank and Trust Company in a trust of which the defendants would be beneficiaries, they would accept the conveyance as security in lieu of the amount in default and that whenever within one year or five or more, the plaintiff would cure the default by the payment of $615 with interest, defendants would reconvey lot 151 and that until paid the defendants would hold title to lot 151 in trust for the plaintiff and that the note and deed of trust covering lot 278 would, by a separate instrument, be extended for [117]three years; that escrow instructions were prepared and signed in accordance with the oral agreement indicated, but that the instructions were not followed; that on the contrary, a single note in the sum of $7,120, being the amount of the original loan of $6,500, plus the sum in default, and a deed of trust covering both lots, securing payment of this note, were prepared and presented to the plaintiff who executed the same by signature and delivery to the bank, as trustee; that on June 17, 1933, the plaintiff tendered the sum of $620 to the defendants and demanded the reconveyance of lot 151; that the respondents refused the tender and refused to convey on the ground that both lots were covered by a single deed of trust; that on June 21, 1933, the defendants filed written notice of default and demand for sale by the trustee; that in August, 1933, defendants orally stated to the plaintiff that they would buy both lots at a trustee’s sale and would stand prepared to reconvey lot 151 to the plaintiff upon payment of $620 with interest at 7 per cent; that on October 29, 1933, both lots were sold to the defendants; that in June, 1934, plaintiff again tendered the sum of $620 and again demanded reconveyance of lot 151, which was refused; and that defendants have had possession of lot 151 since October, 1933. Plaintiff prays that a trust be declared and that defendants be compelled to convey lot 151 to plaintiff.