Ravano v. Sayre

[62]

BURROUGHS, J.,

pro

tem.

These two cases were consolidated for the purpose of trial and also for the purposes of appeal. Action No. 4604 was commenced by

Luigi Ravano et al.

v.

Etta M. Sayre et al.,

to set aside a trustee’s sale of real property by virtue of the authority contained in a trust deed given by Ravano. et al. to secure a debt to the Sayres. The Bank of America National Trust and Savings Association intervened because of a debt owed to it by the Ravanos.

In action No. 4605, Sayres et al. brought an action in ejectment against the Ravanos et al. to recover possession of the property which is the subject of the deed of trust. The Sayres recovered judgment in both actions. The Ravanos have appealed from the judgments.

Appellants contend that the sale of the real property under the deed of trust was prematurely made in that the respondents extended the time for the payment of the debt secured by the deed of trust until December, 1930, and the sale was made by the trustee in July, 1930. A jury was impaneled, who, in answer to the only inquiry propounded to them, held that the time had been extended for the payment of the debt, as claimed by the appellants. The court ignored the special verdict of the jury and made complete findings in both cases, and, among other things, found; that the time had not been extended for the payment of the debt.

It seems to be conceded by all parties that the court had a right to ignore the special verdict of the jury, but, it is said by appellants in their brief: 1 ‘ Sayres extended time for payment of notes.” They then proceeded to argue that the evidence sustains this contention. We therefore take it that they challenge the sufficiency of the evidence to sustain the finding of the court, that the time was not extended.

An examination of the record discloses that the evidence upon this subject is in sharp conflict. Without reciting all of the evidence in detail, it is sufficient to say that Logan Sayre, who, it is claimed, granted the extension of time, testified that he never at any time granted an extension. The court asked him: “Well, did you ever grant him any extension of time?” To which he replied: “No, sir.” There does not appear to be anything inherently improbable in the testimony of Sayre, and without further presentation of the evidence upon this subject, that alone is sufficient to