Silva v. Dias

DORAN, J.

This is an action to have a deed adjudged a mortgage and to quiet title. Briefly the record reveals that John H. Machado was the attorney for John F. Silva in his lifetime, and in a transaction between them the property in question, which was owned by Silva, was conveyed to Florence Dias to secure attorney’s fees for services to be performed by Machado for Silva.

The complaint alleged, “plaintiff is ready and willing to satisfy and discharge the indebtedness which said deed was executed to discharge, whenever the amount thereof shall be ascertained and determined.” Plaintiff prevailed at the trial. The court quieted title in plaintiff and decreed that a proper conveyance be executed accordingly, but only upon the payment by plaintiff to defendant Machado of the sum of $601.81 within a certain time specified in the judgment, which sum it was adjudged was due the defendant Machado from the estate of Silva, since deceased, and which amount was further adjudged to be a lien upon the real property involved in the action.

It is contended by plaintiff-appellant: first, that the defendant Machado could not assert a claim against the estate without first filing such claim with the administratrix; second, that Machado was foreclosed from testifying in the action in support of his claim by virtue of section 1880 of the Code of Civil Procedure; and third, that in the absence of Machado’s testimony, the findings lack support in the evidence, and hence such findings fail to sustain the judgment.

The record reveals that Machado asserted no claim against the estate. Machado’s answer in substance and effect was limited to the single effort to enforce a lien against specific property, the authority for which is provided by section 716

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of the Probate Code. A mortgage lien is not a claim within the meaning of subdivision 3, section 1880 of the Code of Civil Procedure, and hence Machado’s testimony was properly admitted. This being true, the evidence sustains the findings. Moreover, the evidence supports the court’s conclusion that the sum due was correct, and in that connection the law is well-settled that no affirmative relief in an action to quiet title can be granted without first paying or securing the balance due, if any. (17 Cal. Jur. 818, 819.) The judgment requiring the payment above mentioned, therefore, was proper.