Bracey v. Gray

TUTTLE, J.

Plaintiffs brought this action to recover possession of certain real property, and damages arising out of its detention. Upon the stipulation of defendant John Gray and plaintiffs, the action was dismissed as to him. The cause was afterward tried, and on January 17, 1939, judgment was entered in favor of plaintiffs and against defendants. On March 9, a new trial was granted as to defendant Dora Stuart Gray. Thereafter, and on May 1, 1939, judgment was entered in said action against defendant Dora Stuart Gray for restitution of the premises. Defendants appeal from said judgments, and from an order of the court denying their motion to vacate the judgment last rendered. They also appeal from an order granting their motion for new trial which was entered January 17, 1939. The case is before us upon a bill of exceptions.

The premises in question were owned on November 1, 1928, by one Alice Anderson who, on said date, executed a deed of trust covering the same, to Title Insurance and Trust Company, as trustee, for the benefit of State Mutual Building and Loan Association, to secure the payment of $2,250. Thereafter, said Alice Anderson conveyed the property to Dora Stuart, a single woman, and who subsequently married defendant John Gray, and who is now Dora Stuart Gray, another defendant herein. Upon default in the payment of

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said indebtedness, the said trustee sold said property under said deed of trust. At such sale, said association became the purchaser thereof. On July 5, 1935, said association, for the sum of $1,500, executed a quitclaim deed to said property, to plaintiffs.

The chief contention made by appellants is that the evidence is insufficient to establish any title or right to possession in plaintiffs, for the reason that it shows the transfer to plaintiffs to have been a mortgage. While there is a conflict in the evidence upon the question, we are satisfied that there is ample testimony to support the finding that plaintiffs were the owners and entitled to the possession of the property. Arthur Bracey testified in part as follows:

“My wife’s niece came—Dora Stuart Gray—she came and said they had lost it—the property described in the deed. That was in June, 1935. We talked to her and kinder found out that there was something in it. We wanted to find out for sure there was something in it. Whether the property was down there or not. Sometimes talk bnt there is nothing to it. So we went to the Grass Lake Bank and found out we could get the money to buy it and we got in touch with a man named Parker through Mr. Mellencamp and he got in touch with Los Angeles, the Building and Loan Association, and we got the deal through. Mr. Parker was president of the bank in Chico. Mr. Mellencamp handled the transaction for us. We borrowed the money from the bank at Grass Lake and gave a mortgage on our farm in Waterloo Township. I kind of half-way think this quitclaim deed was sent to us directly from the State Mutual Building and Loan Association. It either came that way or through Mr. Mellencamp. We received it about July 15th, 1935. We took care of the recording of it in Butte County. We sent it and paid the fee. The deed came to the bank and was delivered to me. Question: Did you purchase this property outright for yourself and Mrs. Bracey? Answer: Well, we bought it. Question: You bought it for yourself? Answer: Yes. Question: Did you purchase this property outright for yourself? Answer : We intended to sell it. Question: You later intended to sell the property ? Is that what you mean ? Answer: Yes sir. Question: When you bought this property did you buy it for anyone else? Answer: No, no. Question: Was this property then for yourself and wife? Answer: Yes sir. Question: Has anyone else got any interest in this property?