Bard v. Kent

MoCOMB, J. —

Prom a judgment in favor of plaintiff after trial before the court without a jury in an action to recover $22,403.88 alleged to have been received by defendant for the use of plaintiff’s decedent Ruth Roland Bard, defendant appeals.

These are the essential facts:

Plaintiff is special administrator of the estate of Ruth Roland Bard, deceased, who died September 22, 1937. January 25, 1927, decedent advanced $38,000 to Mr. L. Lewyn and his wife and received a note and first trust deed on certain real property located in' Los Angeles County (referred to by the parties as “No. 19 property”) as security therefor. Subsequently defendant loaned Mr. Lewyn and his wife $10,-000 secured by a note and second trust deed on the property known as “No. 19 property”. In 1932 the Lewyns being in arrears in the payments due on their notes, by common understanding between them, decedent, and defendant, in lieu of a foreclosure, deeded the property described in the trust deeds to defendant who held the title to the property

[436]

with the consent of decedent, 1/5 for his own account and 4/5 in trust for her.

In September of 1937 No. 19 property was sold for $37,-500 and at the same time in order to clear the title to the property decedent executed a “Request for Reconveyance”, which was delivered to the trustee, who in turn executed a reconveyance which was duly recorded September 3, 1937. Subsequently defendant received the purchase price of the property, converted it into certificates of deposit in his own favor and placed them in a safety deposit box. None of the money was ever paid to decedent or plaintiff.

Subsequent to the trial court’s entering a minute order giving judgment in favor of plaintiff, defendant made a motion to vacate the order and reopen the case for further evidence.

Defendant relies for reversal of the judgment on these propositions:

First: There was not substantial evidence to sustain the trial court’s finding of fact reading as follows:

“That betiueen the 4th day of September, 1937, and the 15th day of November, 1937, and thereafter from said last named date to the 26th day of April, 1938, as set forth in plaintiff’s Complaint and Amended and Supplemental Complaint, in the County of Los Angeles, State of California, the said defendant L. F. Kent received the sum of $22,403.88 for the use of Ruth Roland Bard, deceased.’’