This is an appeal by the plaintiff from a judgment and from an order denying her motion for a new trial. We have examined the record with reference to the points urged in support of the appeal from the order denying her motion for a new trial and have concluded that the evidence, though not satisfactory, is sufficient to support the findings, and that no error is presented thereby which is material to the relief to which we think the plaintiff is entitled, and therefore the points urged upon that appeal need not be further considered.
The complaint alleges, in substance, that one Mary E. Pleasant, as the agent of the plaintiff, intrusted the defendant with a large sum of money belonging to the plaintiff; that with this money the defendant purchased a certain tract of land, described in the complaint, at sheriff's sale, in his own name, and took a certificate and, subsequently, a sheriff's deed therefor, conveying title to him; that he paid no money at the sheriff's sale other than money so intrusted to him by the plaintiff, except the sum of fifty dollars, which he advanced out of his own funds as part of the costs of the sale; that the defendant still holds the property in his own name, but, in fact, as trustee for the plaintiff, and that prior to the beginning of the action she tendered him the fifty dollars paid by him out of his own funds at the sheriff's sale, and demanded a conveyance of the property by him to her. The prayer is for a decree compelling the defendant to convey the property to the plaintiff upon the payment of the fifty dollars in question, and for such other and further relief as *Page 61 she may be entitled to in the premises. The answer denied many of the allegations of the complaint, and set up affirmatively that the defendant held the land as security for certain debts existing in his favor against the said M.E. Pleasant and the plaintiff respectively. The court found that the defendant purchased the land with money furnished to him for that purpose by Mary E. Pleasant, except the sum of fifty dollars which he paid out of his own funds; that Mary E. Pleasant at the times in question was to a considerable degree managing and conducting the affairs of the plaintiff and handling money belonging to her; that the sum so furnished amounted to eleven thousand dollars, of which five thousand one hundred dollars belonged to the plaintiff and five thousand nine hundred dollars to Mary E. Pleasant; that defendant did not know that any of the money belonged to plaintiff; that it was agreed between plaintiff and Mary E. Pleasant at the time he purchased the property at the sheriff's sale that he would hold the same in trust, and that, if a redemption was made, the redemption money should be applied toward the payment of certain notes held by him against the plaintiff and Mary E. Pleasant, respectively. If there was no redemption, then he should procure a deed for the property in his own name and dispose of the same and apply the proceeds toward the payment of the notes. Other facts and details were put in issue and found by the court, but they are not material to the point to be decided. Upon the facts admitted and found a decree was made, declaring the plaintiff not entitled to any relief against the defendant, but that the judgment should be without prejudice to any subsequent action by her to establish her rights in the premises after payment to the defendant of the several amounts to him due on the notes and fifty dollars advanced by him out of his own funds.
We think the court should not thus summarily have dismissed the plaintiff from its forum without any relief. The defendant does not claim to hold the absolute title to the property. All that he claims, and all that the court finds, in substance, is, that he holds the land in trust to secure the payment of a promissory note executed to him by the plaintiff on March 26, 1896, for six thousand two hundred dollars, with interest at seven per cent per annum from maturity, *Page 62 and also as security for the payment of a balance of a thousand dollars owing on a note executed by Mary E. Pleasant to defendant, made January 15, 1895, with seven per cent interest from that date, and for the further payment of fifty dollars advanced by him at the sheriff's sale, with power to sell the property for the payment of said sums. The defendant is not interested in any controversy which may arise between the plaintiff and Mary E. Pleasant with respect to the ownership of the money which he received for the purpose of purchasing the property, nor in their respective rights in the land as against each other in case of redemption by either. Nor does it concern him whether the one or the other effects the redemption. He is entitled to hold the property until all the money secured thereby is paid. Both the plaintiff and Mary E. Pleasant, under the facts found, have an equitable interest in the land, and would be entitled to redeem, but neither of them could do so without the defendant's consent, except upon payment of the full amount due from both. Plaintiff is therefore, upon the facts as claimed by defendant, entitled to tender to him the full amount due, and receive from him a conveyance of the property. He did not see fit to ask in his answer to have Mary E. Pleasant made a party to the action, and it is not in accordance with our ideas of justice that the plaintiff should be denied any relief because of this failure on the part of the defendant. If Mary E. Pleasant does not choose to assert her rights to the property against the plaintiff, if any she have, that is her affair, and one with which the defendant had no concern. It appears from the record in this case that the property in question has been the subject of long and vexatious litigation. It is to the interest of the parties that the litigation should be ended. It is true that plaintiff asked for a greater measure of relief than she is entitled to, but the relief due her is of the same nature as that which she asked. Her interest in the land is, according to the facts found, a partial interest instead of the entire interest, as alleged, and the sum due the defendant is much larger than the fifty dollars alleged. But nevertheless she has an interest which entitles her to redeem on payment of the amounts found due, and the defendant holds the legal title, in trust, as alleged, although partly for her and partly for another. The relief is of the same character, and the *Page 63 rights of the parties are of the same nature as alleged, though different in detail, and the court has power, under section 580 of the Code of Civil Procedure, to award plaintiff such relief as the facts warrant.
The fact that defendant did not know of plaintiff's interest in the money furnished him by Mary E. Pleasant is not material.
Inasmuch as the plaintiff never tendered or offered to pay the sums found due, or made any attempt to do so, or to ascertain the same, before suit, she should not be allowed the relief here indicated except upon payment of the costs.
It should be added that the findings of the court in this action, that the money with which the defendant purchased the property in question was partly the money of Mary E. Pleasant and partly the money of the plaintiff, and upon other matters in issue, will not be binding upon the plaintiff in any litigation between her and Mary E. Pleasant concerning their interests in the property, or in the money advanced for the purchase thereof.
The evidence and findings in the case seem to cover all of the matters in issue between the parties before the court, and there is no necessity for a new trial. The judgment, however, should be modified in accordance with the views herein expressed.
It is therefore ordered that the cause be remanded, with directions to the court below to enter judgment declaring that the defendant holds the property as security for the sums set forth in the findings and conclusions of law, specifying particularly the amounts, with power to sell the same to pay the said sums of money, and that upon payment of the said sums, with interest due at the time of payment by the plaintiff to him, he shall execute a deed conveying to her the property, and that the defendant recover of plaintiff his costs, including his costs upon this appeal.
McFarland, J., Lorigan, J., and Henshaw, J., concurred.