Connelly v. J. D. Millar Realty Co.

VAN ZANTE, J.,

pro

tem.

This action was brought by plaintiff to rescind a contract and to quiet title to a certain lot in the city of Los Angeles. The default of the defendant Fred S. O’Neill was entered and the action was dismissed as to defendants J. D. Millar Realty Company, J. A. Ross, Security Trust and Savings Bank and Security First National Bank.

[68]

Judgment was rendered in favor of the defendants on their answer and in favor of defendant Meline Bond & Mortgage Company on its cross-complaint to quiet title to and for possession of the same lot.

Plaintiff’s contentions that the judgment as rendered should be reversed are set forth in his opening brief as follows:

“Appellant contends and alleges as grounds of error and as sustaining a reversal the following theories:

“ (a) That defendants and respondents, through their duly authorized servants, agents and/or employees had notice and knowledge of the open, exclusive, and notorious possession of the said property by appellant herein at 2438-2440 Mansfield Avenue, Los Angeles, California, at all times herein mentioned, and that any rights of defendants and respondents in placing an incumbrance upon said property with knowledge of these facts are subservient and secondary to those of appellant.

“(b) That the evidence is insufficient to justify or sustain the findings of fact and conclusions of law.”

It appears in the record, and is not disputed, that plaintiff was in possession of this property at the time in question. It also appears in the record that while the plaintiff was so in possession she executed and delivered to defendant Fred S. O’Neill a grant deed conveying this property to him; "that while this grant deed recited a consideration of ten dollars, the real consideration was $1,000 and two lots in the Hollywood Sunnyside tract; that plaintiff received only $600, and the two lots have not been conveyed to her; that after recording his grant deed defendant O’Neill borrowed the sum of $3,500 from defendant Meline Bond & Mortgage Company and executed to that company his promissory note for that sum and secured same by executing a trust deed conveying this property to defendant Title Insurance and Trust Company as trustee and defendant Meline Bond & Mortgage Company as beneficiary.