Firato v. Tuttle

SPENCE, J.

Plaintiffs sued to have a deed of trust, which named plaintiffs Carlo Firato and Salino Firato as beneficiaries, declared a first lien upon the real property described therein and to cancel a purported reconveyance executed by the original trustee. General and special demurrers of respondents to the first amended complaint were sustained with leave to amend. Plaintiffs appeal from the judgment entered in favor of respondents upon plaintiffs’ failure to amend.

The following facts, appearing in plaintiffs’ first amended complaint, are the basis for their alleged cause of action.

On June 20, 1947, plaintiffs Carlo Firato and Salino Firato loaned $8,500 to defendants Tuttle, receiving from the Tuttles a promissory note secured by a deed of trust on the real property here involved. One Gladys E. McCormick was named trustee on the deed of trust, which was recorded on the date it was executed. The trustee was authorized, by the deed of trust, to reconvey the trust property only if the loan it secured was paid in full.

On July 1, 1949, the Tuttles deeded the land to defendant Sardina, and the trustee, without authority, executed a re-conveyance. The major portion of the loan had not been repaid, but plaintiffs concede that the reconveyance recited that payment had been made. The Tuttles’ deed to Sardina and the reconveyance were recorded on July 1, 1949.

In 1950, Sardina conveyed the land to defendants Stanger,

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who executed a deed of trust on the realty to defendant Edelen, as trustee, securing a loan of $8,800 from defendant Northwestern Mutual Life Insurance Company. In 1953, the Stangers conveyed the property to defendants Berry. On April 8, 1954, plaintiff Raymond Firato was substituted as trustee under the Firato deed of trust in place of McCormick.

While Gladys McCormick’s peculations have resulted in other litigation

(Hagen

v.

Silva,

139 Cal.App.2d 199 [293 P.2d 143];