Cohn v. Cohn

PRESTON, J.

Plaintiff brought this action to have a deed declared to be a mortgage, which deed, absolute in form, was made by her in the year 1917 to one Charles

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Cohn, now deceased, to secure an indebtedness of $5,000; also for an accounting of the rents, issues and profits of the property in question; and for judgment awarding her the excess, if any, of rents and profits over the amount of her said indebtedness and interest thereon.

Issue was joined by the answer of defendants, who are executors of the last will and testament of Charles Cohn, deceased. Thereafter the cause proceeded to a hearing, the court made its findings and, on October 20, 1927, rendered its interlocutory decree, adjudging said deed to be a mortgage, appointing a referee to take an accounting, and providing that if plaintiff’s indebtedness exceeded the amounts collected from the property, then plaintiff should have ninety days from final determination of said accounting to pay defendants the moneys found due them; that upon such payment the deed should be canceled and defendants should execute to plaintiff a reconveyance of the property. Said interlocutory judgment was affirmed upon appeal; reference is made to said decision for a fuller statement of the facts of this ease.

(Cohn

v.

Cohn,

100 Cal. App. 746 [281 Pac. 504].)

Later the matter of the accounting was heard. The referee concluded that on April 3, 1931, the plaintiff was indebted to defendants in the sum of $2,109.90, and rendered his report to that effect, to which report defendants filed various objections and exceptions. The trial court, however, found the report and findings of fact of the referee to be correct and gave judgment confirming and approving them, further ordering that defendants execute a reconveyance of said real property to plaintiff, subject to a lien in said sum of $2,109.90. From this judgment defendants appealed.

Appellants devote considerable space to a review of the evidence taken upon the accounting in an endeavor to prove its insufficiency to support the findings of the referee, particularly with respect to the amount of rentals received from the property and the balance found to be due them. It is unnecessary, however, to here engage in a detailed discussion of this contention. The matters urged by appellants may be said at most to create a conflict in the evidence, which the court was justified in resolving