Schluter v. Harvey

Headnote

Consideration—Purchase of Land. — The cancellation of a pre-existing debt is a valuable consideration for a purchase of land.

Pleading—Waiver op Defects. — Where a party attempts to plead the facts showing that he was a bona fide purchaser for value, insufficiency of the pleading cannot be considered upon appeal, when no objection was taken by demurrer or otherwise in the court below, and no objection made to the evidence upon the point.

Interpleader—Parties—Practice.—A tenant against whom conflicting claims for rent are made, may file a bill of interpleader against the several claimants to determine their respective rights to the rent. In such action, the court may determine the rights of the claimants as between themselves.

Appeal from a judgment of the Superior Court of the county of Tehama, and from an order refusing a new trial.

On September 10, 1878, Muth leased to the plaintiff Schluter and one Jens certain fanning lands for a term commencing September 10, 1878, and ending September 1, 1882. By the terms of the lease, the lessees were to pay to the lessor or his assigns, a yearly rent of one thousand five hundred and fifty dollars, the first payment to be made September 1, 1879, and thereafter one payment on September 1st of each year. To secure the payments, the lessees were to execute a note each year in advance, with approved security, and deliver it to the lessor on September 1st. Subsequently, Jens assigned his interest to Schluter. February 25, 1882, Muth executed an assignment written upon the back of the lease, as follows: —

“ This indenture made the 25th day of February, 1882, by J. L. Muth of Tehama County, that I give Henry Baumgarten all my debt of one thousand five hundred and fifty dollars on this lease, made the 10th day of September 1878, between J. L. Muth and Claus Schluter, A. C. A. Jens, and C. F. Brinken, for security of one note made this day of eleven hundred dollars, with one and one fourth interest, also for tax and so forth.” March 23, 1882, Muth conveyed the premises, by deed, to Harvey, in consideration of a prior indebtedness. The deed was

recorded March 24, 1882. The lease and assignment were recorded March 25, 1882. September 1, 1881, Schluter, in accordance with the terms of the lease, made and delivered to Muth a note for one thousand five hundred and fifty dollars, payable September 1, 1882. This was to secure the rent for the term from September 1, 1881, to September 1, 1882. By the terms of the lease it became the duty of the tenant to make a note September 1, 1882, payable September 1, 1883, to secure the rent for the year commencing September 1,1882, and ending September 1, 1883. When the time arrived for making this note, Schluter; learning that Baumgarten and Harvey each claimed that the note should be executed to himself, brought suit against both to compel them to adjust their conflicting claims. Baumgarten and Harvey appeared in open court and admitted the truth of the averments of the bill. It was decreed that the plaintiff execute a note payable to the order of tlie Superior Court and deposit it with the clerk of the court, and that he be thereupon released and discharged from all claims or liability to either of the defendants, and that the latter inter-plead and appear before the court on a stated day “ to present, try, and determine their several and respective claims to said rent and note in controversy.” At the hearing the court found the facts as above stated and gave judgment that' Harvey Avas entitled to the note.