Bradbury

The sole question presented is as to the validity of the contract under which Davenport received the deed of *153 plaintiff’s intestate, Keniston,to the premises in dispute. The contract recites that Keniston was the owner of certain land which was subject to a mortgage to Davenport to secure Keniston's promissory note, upon which there was due on March 1, 1895, three thousand three hundred and thirty-three dollars and eighty-seven cents, unpaid at the making of the contract; that ICeniston had made and executed his deed conveying the portion of the mortgaged premises here in dispute to Davenport, and placed the instrument in escrow in the hands of the cashier of the hank of Escondido, and that Davenport had likewise placed the note and mortgage in the same custody; that said escrow was made for the purpose, and upon the condition mutually agreed, that if Keniston should pay to said cashier for the benefit of Davenport, on or before .July 1, 1895, the amount of said note, with semi-annual interest thereon, at the rate of ten and a half per cent per annum from the first day of March, 1895, to the time of such payment, said cashier should surrender the note and deed to Keniston, and…