Borneman v. Salinas Title Guarantee Co.

DOOLING, J. pro tem.

Plaintiff appeals from a judgment quieting title in defendants Riewerts. The appeal is

[501]

presented on a clerk’s and a reporter’s transcript. Plaintiff brought the action to quiet title in himself. In his complaint, in addition to the usual allegations of his ownership and the claim of some estate or interest by defendants, plaintiff alleged that defendants had no right, title or interest in, or incumbrance upon, the real property involved ‘ ‘ except for the payment of an indebtedness in the amount of $200.00. ’ ’ Plaintiff further alleged that defendant Salinas Title Guarantee Company “is sued herein individually and as Trustee ... in a certain Deed of or Transfer in Trust dated January 18, 1937, . . . and which said instrument was executed originally by plaintiff for the purpose of securing a certain promissory note dated January 18, 1937, in the principal amount of $400.00, without interest.”

By answer defendant title company disclaimed any interest in the property and defendants Riewerts alleged title in themselves, setting out as their source of title a sale to them by defendant title company under the deed of trust referred to in plaintiff’s complaint, following default of plaintiff and after proceedings duly and regularly had therefor. A copy of the trustee’s deed was pleaded

in haeo verba

and no affidavit denying its due execution or genuineness was filed by plaintiff under Code of Civil Procedure section 448.

When the case was called for trial counsel for plaintiff made an opening statement in which he stated his intention to prove that the plaintiff while under indictment for felony had employed a certain attorney to defend him; that while the relation of attorney and client existed the attorney obtained one note for $750 from plaintiff secured by a first deed of trust, and a second note for $400, secured by the deed of trust referred to in the pleadings; that $200 had been paid on the $400 note when the notice of breach was filed; that the property was sold by the trustee to defendants Riewerts and the excess realized over the indebtedness secured by the deed of trust pursuant to which the sale was made was applied on the $750 note secured by the first deed of trust without foreclosing it; that plaintiff was unable to read and write and relied upon his attorney’s statements in executing and delivering the two notes and- two deeds of trust to him; that they were obtained by fraud and that the defendants Riewerts purchased with notice of these facts.