Alden v. Pryal

Mtrick, J.: This is an action to foreclose a mortgage. The premises as described in the complaint consist of a triangular piece of land at the junction of Telegraph (University) avenue, Oakland, with the Lafayette road, fronting ninety-six and sixty one-hundredths feet on the avenue, and two hundred and twenty-six and sixty one-hundredths feet on the road. The answer of the defendant Pryal alleged that the mortgage was given to secure the payment of the purchase money; that plaintiff falsely and fraudulently misrepresented the boundaries and quantity of the land, in that he represented he was selling and had a right to sell a frontage on the avenue of ninety-six and sixty one-hundredths feet, when in fact he did not own such frontage or any greater frontage than fifty-six and sixty one-hundredths; that by reason of the shape of the piece of land, the taking off twenty feet front on the avenue, running back, the land became of no value; and the defendant averred that the consideration for the note had entirely failed. The defendant offered and read in evidence the deed, which [220] is a grant, bargain and sale deed of the ordinary form, and contains no express covenants. The defendant then offered to prove that in 1862 the Board of Supervisors of Alameda county laid out the avenue as a public highway, which included the twenty-foot strip, but that the inclosures of plaintiff were not removed; that plaintiff represented to defendant that he owned and was selling according to the deed and inclosures; that after the making of the deed and mortgage there was a dispute as to where the true lines ran, and the Board of Supervisors ordered a re-survey, which was made and ran where the original survey was made, taking off the twenty feet; the proceedings in regard to the road were of record in the records of the Board of Supervisors, but the obstructions had not been removed; that at the time of the purchase plaintiff furnished to defendant a map which designated the premises according to the deed; and that when defendant ascertained that the strip of twenty feet was taken off, he offered to re-deed on the note and mortgage being surrendered. The Court below sustained plaintiff’s objection to the testimony, and this ruling is alleged as error. There are three answers to the defendant’s proposition, viz: 1. The records of the Board of Supervisors were open to the inspection of the defendant, and he could have easily ascertained where the lines of the road were, and whether the road included any portion of the described land. 2. The plaintiff if he were the owner of it, had the right to sell, and the defendant to buy, the fee of the twenty-foot strip, subject to the easement of the highway. There could not, therefore, have been a failure of consideration, either as to that or as to the balance of the land. Each was of some value. 3. There was no offer to prove an eviction. Another point is made. The mortgage contained the clause “ Counsel fees and charges of attorneys and counsel employed in such foreclosure suit not exceeding-.” It is claimed that this clause does not provide for counsel fees, and that the Court erred in awarding the same. We think the correctness of the action of the Court is apparent. Judgment and order affirmed. Ross, J., concurred.