Pratt

Three different actions were consolidated and tried together. In each of them was involved the question of the ownership of a fund of nearly $4,000 in the hands of plaintiffs as trustees under a trust deed of certain real property held by them as security for the payment of an indebtedness of $8,000 due to one Robert Dalziel, Sr. On the twenty-ninth day of April, 1904, George E. Faw and his wife made to said Dalziel a promissory note for *Page 627 $8,000, payable one year after date, bearing interest at eight per cent per annum, payable monthly, containing a stipulation that if the interest was not paid within two months after due the principal and interest should forthwith become due at the option of the holder of the note. The note was secured by the trust deed aforesaid and, by the terms of the latter, upon default of payment of principal or interest, the trustees, on demand of said Dalziel, were authorized to sell the property after publishing a certain notice. Default was made in the payment of interest and in accordance with the terms of said deed the property was sold, and after the payment of the expenses and of said indebtedness a surplus of $3,786.60 remained. Faw and…

Respondents in their petition for rehearing invite our attention to several points that were not mentioned *Page 632 in their brief or suggested in the oral argument. These suggestions, however, have received careful attention, but they have not shaken our confidence in the correctness of our former conclusion. As to the contention that a certain $180 could not be applied to the payment of the interest due, and therefore that appellant was in default according to her own showing, it is. sufficient to refer to the testimony of Mrs. Roberts that "Mr. Faw said we would have an interest, interest in the $200, until that comes back to my sister-in-law and until that is paid back, or if it is not paid back it can go in the end to help pay up the difference that may be necessary to come from you, your sister-in-law." She afterward testified that $20 of it were handed back to her by Mr. Faw, leaving a balance due from Faw of $180. Giving full credit to her testimony, then, the situation is that appellant was required to make certain payments of interest to Faw in order to be entitled to a conveyance of the property. Faw owed her $180 which if applied on said contract of sale would prevent…