Franck v. Moran

BURNETT, J.

This is an appeal from the judgment rendered by the superior court of Shasta County in a suit in equity to set aside two deeds to real property, in which action defendants’ motion for a new trial was denied.

The property in question was, on November 18, 1905, owned by Sarah B. Hunter, who at that time and at all times subsequently had but one creditor, Franck & Co., to whom she then owed $640.46. On said date she executed a trust deed to J. E. Hunter and Grant Hunter for the benefit of Laura Hunter Newman, Ralph Newman, "and Ruby Newman (Mrs. Moran), with directions to trustees to sell at Mrs.. Laura Newman’s orders and pay all proceeds to said Laura Newman. This deed was not recorded until 1915. It appears that on January 1, 1909, Sarah B. Hunter was indebted to Franck & Co. in the sum of $2,614.25, on January 1, .1910, in the sum of $3,499.90, and on January 1, 1911, in the sum of $1,287.50. On December 31, 1910, she was given a credit of $2,850, and during the next two years ending December 31, 1912, she was credited with one thousand two hundred dollars. It thus appears that, from 1905 to December 31, 1912, she was credited with $4,050, and that the credit on December 31, 1910, was sufficient to cover the indebtedness as it stood on January 1, 1909. On January 23, 1913, Sarah B. Hunter executed a deed of the property covered by the trust deed to Laura Hunter Newman, which was recorded April 25, 1913. It may be noted in passing that respondent argues that this amounted to a repudiation by Laura Newman of the former trust deed. Sarah B. Hunter died March 31, 1913, and at the date of her death was indebted to Franck & Co. in the sum of $1,203.60. On March 27, 1915, letters of administration were issued to respondent, William Franck, one of the members of the firm of Franck & Co., and on April 7, 1915, he commenced suit against appellant, Laura Hunter Newman, to set aside the deed recorded April 25, 1913. In this action a

lis pendens

was filed and recorded. Shortly thereafter, on May 6, 1915, the trust deed, dated November 18, 1905, was recorded, and soon after, on June 5, 1915, a deed from the trustees was executed to John Moran,

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for which appellants claim Moran paid one thousand dollars. In September, 1915, the action was tried and the deed of 1913 was ordered canceled.