Horton v. Johnston

MUSSELL, J. In this action to foreclose a lien, plaintiff sought to recover sums paid by her for taxes, assessments and maintenance charges on certain real property in Riverside County described as Lot 11, Block “A” of Idyllwild Mountain Park Company’s Subdivision No. 12. This property is [275]owned by appellants Merkle C. Johnston, Donna M. Johnston and plaintiff as tenants in common. While the action is to foreclose a lien, the main purpose in filing it was to secure a judgment determining that a trust deed in the sum of $4,000 was and is not a lien against plaintiff’s one-half interest in the land. Carrie A. Horton (the owner of the trust deed) and the Johnstons (who filed a cross-complaint) appeal from the judgment entered for plaintiff. The question involved is whether the evidence is sufficient to support the findings and judgment.

Relationship of Parties

Plaintiff Addie B. Horton and Kenneth B. Horton are husband and wife, and on August 3,1948, an interlocutory decree was entered in a divorce action between them. Carrie A. Horton is the mother of Kenneth B. Horton and appellant Donna M. Johnston. Merkle C. Johnston and Donna M. Johnston are husband and wife.

Facts

On August 6,1946, plaintiff Addie B. Horton agreed through a real estate broker to purchase the property here involved as her separate property. She signed a real estate broker’s receipt and deposited with the broker a cheek in the sum of $400, payable to Farmers and Merchants Bank of Hemet. The receipt provided, among other things, that the purchase price of the property was $8,750; that the “balance was to be paid in cash inside of ninety days, possession close escrow.” On October 4th plaintiff gave the real estate broker another cheek in the sum of $600, payable to the same bank, to apply on the purchase price of the property. Plaintiff testified that she bought the property with the proviso of selling her home in Bast Los Angeles and it was understood that the payment of the balance of the purchase price was contingent upon such sale; that the purchasers were not able to go through with the sale and the property was again placed in escrow for a second sale.

The record shows that on November 8,1946, the Farmers and Merchants Bank demanded the deposit of the balance of the purchase price and that plaintiff was unable to obtain it. Kenneth B. Horton testified that he agreed to purchase the property when the plaintiff lost the sale of her home in Los Angeles. On December 10th he wrote to the bank advising it that within a few days he would be in to give instructions, and on December 26th escrow instructions were executed at the