Cohn v. Cohn

KOFORD, P. J.

Plaintiff executed to Charles Cohn, deceased, during his lifetime, a deed conveying to him certain real property, with improvements thereon, in the city and county of San Francisco. This action, is brought against the executors of said Charles Cohn, deceased, for the purpose of having said deed, which is absolute in form, declared to be a mortgage. The complaint alleged that pursuant to agreement, the said decedent took possession of said property immediately after said conveyance, and thereafter collected all the rents therefrom, applying them to the indebtedness, and that the rents so collected at the time suit was commenced, exceeded the amount of plaintiff’s indebtedness to said decedent. The complaint prayed for an accounting and for a reconveyance of the property. At the trial the plaintiff waived her prayer for a money judgment against the estate of said decedent for any amount of rent which might have been collected in excess of her indebtedness to the decedent. An interlocutory judgment was given in favor of plaintiff for an accounting. The defendants appeal.

The points urged on the trial by the defendants were: First, that plaintiff could not maintain the action because she had not filed a claim with the executors of the estate before commencing the action; second, that her action

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was upon a claim against the estate and that she was, therefore, incompetent to testify as a witness on account of the provisions of subdivision 3 of the Code of Civil Procedure, section 1880. These two points have been directly passed upon by the Supreme Court and appellate courts of this state. It has been held that in an action to recover specific real property as owner thereof, it is not necessary to allege or prove the filing of a claim with the executors.

(Newport

v.

Hatton,

195 Cal. 132 [231 Pac. 987] ;

Maguire

v.

Cunningham,

64 Cal. App. 536, at 548 [222 Pac. 838].) It has likewise been held that the plaintiff is a competent witness in an action of this kind.