Friedlander v. Bank of California

Citations

• 119 Cal. 93
• 51 P. 24
• 1897 Cal. LEXIS 858

Syllabus

<p>Trust—Sale of Lards fob Indebtedness to Bank—Joint Debtors—Separate Settlements—Release of One Debtor Except as to Lands— Settlement with Godbbtor—Surrender of Notes—Action by Administrator for Accounting as to Lands.—Where each of two debtors gave his notes to a bank' with the other as indorser, and transferred lands and other securities to the bank to secure his indebtedness, upon an express trust to sell the lands to pay the indebtedness, and the bank, for a valuable consideration, surrendered his personal securities to one of the debtors, and released him from liability upon the notes except as to the lands transferred by him to the bank in .trust, the settlement in no way touching upon or affecting the rights and liabilities of his codebtor, with whom a separate settlement was subsequently had, involving an absolute conveyance of his lands to the bank, and a release of his indebtedness, and surrender of all the notes to him, such settlement in no way touching upon or referring to the other debtor with whom the first settlement was made, the burden of indebtedness remaining upon the lands under the first settlement was not removed or discharged or in any way affected by the second settlement with the codebtor, and such lands, being still held upon the original trust, formed no part of the estate of the deceased trustor, and upon subsequent sale thereof by the bank and application of the proceeds in part payment of the original indebtedness of the deceased trustor to the bank, his administrator cannot maintain an action against the bank for an accounting upon the theory that the entire indebtedness of both debtors was discharged by the surrender of the notes, and that the lands of the deceased debtor were thereby released from the trust, and reverted to the estate.</p> <p>Id.—Conflicting Evidence as to Nature of Second Settlement—Admission of Bank—Closing of Note Account—Findings—Sufficiency of Evidence.—Where there is evidence of circumstances tending to show