Evje v. City Title Insurance

NOURSE, P. J.

The reciprocal actions in the case involve the sole question whether a promissory note of $12,000 payable to defendant and cross-complainant Emma De Voto, further called De Voto, signed in April, 1929, by certain Mohr’s Incorporated, further called Mohr’s, and secured by a deed of trust on certain tract of land in San Francisco, of

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which plaintiff and cross-defendant A. W. Evje, further called Evje, acquired a parcel in November, 1950, has been paid in full so that the deed of trust should be reconveyed or that part of the indebtedness and interest, taxes, et cetera, remain unpaid so that De Voto is entitled to satisfy said obligation by sale of the property owned by Evje. The court gave judgment for De Voto and Evje appeals. Defendant City Title Insurance Company, the trustee under the deed of trust, has agreed by stipulation to be bound by any judgment rendered herein and is not a party to the appeal.

Emma De Voto had no personal interest in or knowledge of the transaction but was merely the nominee, agent or trustee of her brother Stephen Capurro, herein further called Capurro. Capurro had owned the tract, sold it to Mohr’s, who planned to parcel it and build houses on the lots, for $19,000 of which $7,000 was in cash and $12,000 in the above note and second deed of trust made payable to De Voto. The deed of trust, received in evidence, contained a provision to the effect that when lots on which houses had been built were sold Mohr’s would assign to Capurro notes and deeds of trust given by the purchasers, or at Mohr’s option pay cash instead. The purchasers’ notes would be accepted by Capurro at their full face value as payment on the $12,000 note but Mohr’s guaranteed their payment in full. Capurro would release from the original deed of trust the lots sold for which he had received purchaser’s notes and deeds of trust. The note of $12,000 would be cancelled when paid in full by the assigned notes and or cash. Capurro, heard both as adverse witness under section 2055, Code of Civil Procedure, and in his own behalf and cross-examined at length, declared repeatedly under oath that he had received on account of the $12,000 note nothing but the assignment of five purchasers’ notes and deeds of trust totaling $9,783.96 a few months after the original transaction in April, 1929, and one payment on March 5, 1930, of $450, a total of $10,233.96 plus some interest payments, so that a balance of $1,766.04 of the principal, interest, et cetera, remained unpaid. The judgment is in accordance with this testimony.