Donkin v. Killefer

BARNARD, P. J.

This is an action for the unpaid balance of a promissory note, the complaint alleging that the note was originally secured by a deed of trust the security of which has, without fault of the plaintiff, become valueless.

On May 1, 1931, the plaintiff, through a real estate agent, John H. Kibler, sold sixteen acres of land to the defendants for $4,150, taking back a note and trust deed for $3,500. On October 29, 1931,

the

defendants sold five acres of the land to Kibler for $1200, which amount was paid to the plaintiff and applied upon the note. On November 3, 1931, the defendants sold the remainder of the property to Kibler, subject to the trust deed indebtedness, and received from him other property in exchange for their equity.

The complaint in this action was filed on April 28, 1937. On September 17, 1937, the defendants filed an answer alleging that on May 1, 1931, the plaintiff agreed to sell this property to John PI. Kibler; that “as a matter of business convenience” title was taken in the name of the defendants for the use and benefit of said Kibler; that as a part of said transaction the defendant signed the note and trust deed; that the plaintiff knew that the defendants were signing the note under these circumstances; and that the defendants received no consideration for signing said note. On November 17, 1937, a further defense was added to the answer by amendment, alleging that the sale of said land was secured by false and fraudulent representations made by the plaintiff to these defendants to the effect that the land in question was adapted to and suitable for the growing of avocados; that

[731]

said representations were false in every respect; that the defendants believed the same and in reliance thereon undertook to purchase said real estate; that the defendants had sold five acres of the land for $1200 and paid the entire amount to the plaintiff; and that “the remaining portion of said land is without value and that defendants hereby tender to plaintiff a deed to said property”. The only prayer of the answer is that the plaintiff take nothing by reason of her complaint.

At the trial evidence was introduced supporting the allegations of the complaint. Among other things, there was evidence that the land in question had been later sold to the Vista Irrigation District for nonpayment of assessments and that, thereafter, this district brought a quiet title action against Kibler in which its title was quieted by a decree entered on April 10, 1937. After the plaintiff had finished her case the defendants sought to introduce evidence in support of the allegations of fraud contained in their answer. They offered to prove that the plaintiff, at the time she listed the property for sale with Kibler, had told him “that this was good avocado land, that it had been tested and ought to be good avocado land”; that Kibler “conveyed this information to Mr. Killefer who personally did not inspect the land”; that these representations were relied upon; and that the land was not fit for avocado raising. Objections to the introduction of the offered testimony were sustained and a judgment was entered in favor of the plaintiff, from which this appeal was taken.