The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-12-30
THE HIGHER COURT.
Two Decisions Filed Yesterday in APP
peaIed Cases.
"a Butte County Judgment Sustained,
and stanislaus County Land
Case Reversed.

The decision Of the Supreme Court in
the case of Richards appellant VS.. Crit
fifth ct al. was filed in this city yesterday.
The case was appealed from Butte
County.
The lower court sustained the demurrer
to the complaint, and the plaintiff having
declined to amend, judgment was entered
in favor of the defendants.
The complaint alleged that in Noyem-
Der, 1884, one of the defendants, Bunnel,
made and gave a promissory note to
Charles st. Sure for 500, payable two
years later, and to secure its payment de
livered a mortgage on certain lands, the
condition of which is thus described: In
August, 1865, the defendants, Griffiths IL
Stone, recovered judgment against
Bunnel for 1903 26; on October q, 1886,
Bunnel delivered to the plaintiff his
promissory note for $1,000, payable in
TWO years, and ID secure payment he de
nyered mortgage on the same property
owned by him and described in the st.
Sure mortgage; that plaintiff made the
loan upon the express agreement with
him that the st. Sure mortgage should
be satisfied and discharged by Bunnel
out of the sum loaned to him by plaintiff;
that thereupon the plaintiff paid st. Sure
the amount due on the note which he
held against Bunnel 1904 l6), and st.
Sure released Bunnel from the indebted
ness and cancelled the mortgage; that on
November 8, 1886, an execution upon the
judgment referred to was procured by
Gritfiths 81 Stone and that they, after due
proceedings, became the purchasers of
the land described in the mortgage; that
the property was sold in December, 1886,
Tor S3l5 90, and IN June, 1887, no redemp-
lion from the sale having been made, the
Sheriff executed and delivered deed to
Grif1iths & Stone; that the st. Sure
mortgage was recorded August g. 1855,
and the mortgage to plaintiff on the day
1T was executed.
Upon these facts the plaintiff prayed for
Z foreclosure Of his mortgage, a sale of the
property and the payment to him of
1904 Is, with interest. The defendants
demurrer to the complaint was sustained
and the Supreme Court aftirms the iudg-
lnent, saying that the learned Judge of
the count below, IN reviewing the author
tiles, correctly held that this case fell
within the principle discussed and APP
Piled in Persons VS.. Shaeffer, it being
held in this case that a lien will be kept
tlive under some circumstances in favor
Of one who has paid the ien-holder,
although the latter had discharged it of
~ bAAL tAletG W lGiO VIC 0SCOIIbg IL d
latent one the lien will not be kept alive
TO the prejudice of a subsequent bona .fde
purchaser.
a MODESTO LAND CASE.
A decision was also filed in the case of
". A. Alexander tappellant) VS.. w. A
Jackson and Mary Jackson. The appeal
was from Modesto County.
The defendant, w. A. Jackson, in 1884
purchased the property described in the
n loinf frOn1 ('ho rios (rrNcl-ar G15n
paying portion of the price and taking
from him an agreement for a conveyance
upon the payment of the remainder in
two equal installments within six and
twelve months thereafter. In September
of that year Jackson built a dwelling
house and made other improvements at a
cost Of about 81 300, and moved into the
house as his home. The money paid for
the purchase of the lots and the construc-
ton of the house was the community
property of the two defendants, and in
August, 1885, Mary Jackson duly exc
Cuted and acknowledged proper declar-
alton of homestead upon the land and
house and filed it in the County Record
Cr's office.
Jackson made a further payment in
October, 1885, and took from Crocker a
new agreement providing for the pay
ment OF the remainder in thirty days.
IN February. 1886, he paid a still further
sNlll' anu lOOA dI1 dS G6liltIlb prov
for the payment OF the remainder in
thirty days from that date.
Each of the agreements contained a
clause to the effect that if Jackson paid
the amount due and the cost of convey
ance he would receive his deed, otherwise
the agreement would be void and the
amounts already paid be forfeited. If
forfeited, Jackson was to become a tenant
Of Charles Crocker, liable to be dispos-
EeSSed upon three daVS' notice.
AT the time the last agreement was
given him there was due S47 u. In
October, 1887, w. a. Alexander made an
agreement with Jackson for the pur-
chase of the whole property for 81 800,
less such an amount as was to be paid
Croker upon the agreement for the con-
veyance of the land, and at the same time
= ackSon made an Endorsement upon the
agreement of February S, 1886, surren-
Gering TO Alexander all claims to receive
{. conveyance Of the property, and au-
thorizing him to take and demand the
conveyance therefor in his own name.
Jackson delivered this agreement, so
Endorsed, to Alexander, and received
500 as part payment. A few days after
ward Alexander presented to Croker
the agreement, with the Endorsement,
ana received a conveyance of the prop
erty from him, paying him the balance
on the purchase price-S40 q.
On November 3, 1887, Alexander paid
jackson 1925 additional, and executed TO
him his promissory note for 81, 900, Civ
ing mortgage on the property to insure
its payment, thus completing the pay
ment of 81, 800 under his agreement for
the purchase of the improvements.
Immediately afterward he demanded
possession of the premises, which was re-
fused, and he commenced this action in
ejectment to recover the possession. The
defendant, Mary Jackson, had no knowl-
edge or notice of the plaintiffs right OF
title to the property until November 6,
1887, and at the time of his demand foI
the possession repudiated any interest OF
his therein. She alone made answer to
the complaint, alleging her claim OF
homestead and the invalidity of her hus-
lands assignment of the agreement to
the plaintiff.
The Supreme Court says: Consider
ing the entire case as presented by the
record we are of the opinion that COM
llete justice can be best administered to
III parties by reversing the judgment
and directing a new trial, with leave to
the parties to amend their pleadings as
they may be advised
Justice Paterson dissents and gives
quite extended reasons for so doing.
uTTTED THEIR JJTTT, n STOMA CHS