Olivero v. Rosano

KLETTE, J., pro tem.

Mary Olivero, plaintiff and appellant, brought suit against August Rosano and Mary Rosano, defendants and respondents, to quiet title to certain real property. Defendants and respondents filed a cross-complaint in which they named G. E. Olivero and Mary Olivero, husband and wife, as cross-defendants, and in which they alleged that on November 15, 1934, the Oliveros were indebted to defendants and respondents in the sum of $835, on a promissory note, and that on that date a deed was taken to the real property in question, in the name of defendants and respondents, who advanced the purchase price of $4,000, in cash and credit, upon the verbal understanding and agreement, that they were to hold title in trust for appellants, until all advances made by them, together with said sum of $835, represented by said note, were paid, with interest. Payment was to be made within one year, but time for payment was extended to November, 1936. It was alleged that there still remained unpaid on said advances, the sum of $1837.13, and said sum of $835, together with interest.

The answer to the cross-complaint admits, in effect, most of the allegations thereof, merely realleging them in somewhat different detail, excepting as to the $835, which it is alleged was not included in the transaction, had been repaid prior to November 15, 1934, and that the entire transaction was barred by section 337 of the Code of Civil Procedure. Appellants admitted owing $1653.08, which they were willing to pay upon execution of deed to them.

[742]

It was stipulated by respective counsel, in Open court, that appellants were indebted to respondents in the sum of $1837.13, besides interest, but that this did not include the $835, and that the only issues before the court were as to whether this $835 had been paid, and also if barred by the statute of limitations.

The $835 note bore no date, other than 1930, and provided no date for payment, appearing to be the usual printed form of note, without the blanks filled in. Respective counsel have treated it as a demand note, which would outlaw within four years from the date of execution.

The trial court found for respondents on both of the issues presented, and rendered an interlocutory judgment that respondents held title to the real property in trust for appellants, as security for the payment of the sum of $3,153.85 (which included the $<335, with interest thereon), which appellants were required to pay within ten months after the entry of judgment, whereupon respondents were required to convey said property to appellants. If said sum was not paid within the time specified, title to the real property was quieted in respondents. Plaintiff and cross-defendants appealed from this interlocutory judgment, and from the order denying them a new trial.