Lewis v. Covillaud

Citations

• 21 Cal. 178

Syllabus

<p>In a deed of land the consideration was expressed to be SI 0,000, $4,000 paid in cash, “ and the balance by the assuming, on the part of the said grantees, the payment of a certain mortgage ” then existing upon the property to secure the grantor’s note for $6,000: Held, that this recital, unless controlled by evidence of a contrary intention, showed an agreement on the part of the grantees to pay the mortgage debt, and not merely to obtain a discharge of the mortgage as a lion upon the property.</p> <p>The doctrine of McLaren v. Hutchinson, (18 Cal. SO) that where A owes B, and the latter owes C, and A and B, without consulting O, agree that the former shall- pay to C what he is owing to B, an action cannot be maintained by 0 against A for want of privity—commented on and questioned.</p> <p>A vendor’s lien is not assignable. Baum v. Grigsby (ante, 172) affirmed on this point.</p> <p>A finding of fact by the lower Court will not be disturbed' by the appellate Court when the evidence is conflicting, or where the conclusion drawn from it is not necessarily erroneous in point of law.</p> <p>Thus, where C. purchased a city lot of B., and as part of the consideration assumed the payment of a note from B. to L., secured by mortgage upon the property, and some time afterwards C. and L. entered into an arrangement by which C. executed his notes to L. for about three-fourths of the amount due on the original note, and to secure these latter notes gave a new mortgage upon the property, and L. thereupon delivered up the old mortgage, but not the note, and indorsed upon the record entry of the mortgage, “ Satisfied by being releasedHeld, that whether this was an accord and satisfaction of the whole debt, depended upon the intention of the parties, and that the Court below having, upon conflicting evidence in this respect, found as a fact that full satisfaction was not intended, its finding would not be disturbed, although the appellate Court might be of opinion that the weigh