Church

This is an action to foreclose a mortgage given to secure the payment of two promissory notes, for the sum of five thousand dollars each, payable by defendants to plaintiff “ whenever he perfects the title to lots 14, 15, and 16, in block 85, of Fresno, to the satisfaction of Church & Cory, attorneys. .... Neither principal nor interest to be due and payable until said title is perfected as aforesaid, nor until one year.”

The record fails to show that Church & Cory refused to express satisfaction with the plaintiff’s title through any fraudulent or improper motive. The learned judge of the court below, in determining the issues between the parties, stated he would assume that the attorneys acted in the best of faith, but held that if the title was in fact good, the defendants could not refuse to pay the note because their attorneys were not satisfied with the title. In this we think the court erred. The case at bar differs in two very material respects from the cases cited by respondent, namely, there was conceded to be a *628 defect in the title at the time the notes were executed and delivered, requiring action' on the part of the plaintiff to cure, and the arbitrators selected…