16 Cal. App. 2d 463 | Cal. Ct. App. | 1936
From a judgment rendered against all of the defendants in an action to quiet title, three of them have appealed. To the complaint of the plaintiff the appealing defendants each filed an answer. The defendant Bernhard Janssen also filed a cross-complaint. To the latter the plaintiff filed an answer and on the issues so framed the trial was had.
The property involved is a lot, and a two-room cottage standing on it, in the city of Oakland. When the title stood in the name of Joshua A. Calloway he executed what will hereinafter be called the first deed of trust July 28, 1926. That deed of trust was made to Alameda County Title Insurance Company as trustee in favor of Katharine Benz as beneficiary. She filed a disclaimer and said deed of trust is therefore not involved at the present time. Later Joshua A. Calloway conveyed the lot to E. W. and Eleanor A. Stetson and they executed what will hereinafter be termed the second deed of trust August 7, 1926. That deed of trust was made to Alameda County Title Insurance Company, as trustee, in favor of Joshua A. Calloway to secure the payment of a promissory note in the sum of $850 and interest. The note provided that the principal and interest might be paid: “Ten ($10.00) Dollars, or more, on September 7, 1926 and Ten ($10.00) Dollars, or more, on the 7th day of each and every month thereafter . . . ,” etc. Soon thereafter Calloway sold the second deed of trust to Bernhard and Meta Janssen. The loans and sale were each negotiated by B. E. Barrera, a real estate broker. After the deeds of trust were executed Barrera retained the deeds of trust but delivered the notes to the payees. He attended to making the collections and receiving the payments on both notes for the payees. The Stetsons were unable to make their payments and they conveyed the property to B. E. Barrera May 19, 1927. Early in August, 1928, this plaintiff became interested .in purchasing the property. He obtained from Alameda County Title Insurance Company a policy of title insurance which set forth the first and second deeds of trust as encumbrances and showed the record title as standing in the name of B. E. Barrera. The plaintiff then entered into a written contract of purchase with Barrera by the terms of which he agreed to purchase the propert}'- for
Finding No. 7 is, in part: “ . . . acting for and on behalf of the owners and holders of the deeds of trust and in order to avoid the expense and delay of foreclosure on the part of his principals, R. E. Barrera took title to said real property ...” The defendants contend that all of said finding before the name “R. E. Barrera” is not supported by the evidence. Conceding such to be the fact, it is immaterial. The finding was on no part of the plaintiff’s cause of action. It was only addressed to a part of an incomplete defense tendered by the defendants..
The judgment is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 13, 1936.