Dool v. First National Bank

[587]

BARNARD, J.

In this action plaintiffs seek to have a certain note and trust deed declared void and canceled, and to have the title to certain real property in Imperial County quieted. The complaint alleges that Edward Dool, one of the parties who executed a certain note and trust deed, was, at the time of the signing the same, entirely without understanding, within the meaning of section 38 of the Civil Code. It also alleges a rescission, it being set forth in this connection that the plaintiffs offered to return everything they had received, but that they received nothing of value. Plaintiffs admit in their complaint that they are indebted to the defendant bank in some amount, but allege on information and belief that it amounts to not more than $25,000. The court found that Edward Dool died on August 6, 1927; that prior to his death he was the owner of the real estate described in the complaint; that on March 4, 1925, he suffered a stroke of paralysis and was confined to his bed for about three weeks; that on April 22, 1925, he and his wife, Anna I. Dool, executed a deed of trust covering the real property described in plaintiff’s complaint, which conveyed that property to the First National Bank of Calexico, as security for a pre-existing indebtedness of said Edward Dool to said bank in the sum of $28,561.34; that at the time of the execution of said trust deed, the said Edward Dool was capable of understanding the nature, purpose and effect thereof; that the said trust deed was supported by a valid and adequate consideration; that on March 27, 1925, the said Edward Dool and his wife had signed and caused to be delivered to the First National Bank of Calexico a promissory note dated that day for $28,561.34, payable one year after date, with another trust deed securing the same; that on March 27, 1925, when the last-named note and trust deed were signed the said Edward Dool was incapable of understanding the nature, purpose or effect thereof; and that the last-named note for $28,561.34 is the same note which is also mentioned in the trust deed of April 22, 1925. The trust deed of April 22, 1925, recites that it is given for the purpose of securing payment of the indebtedness evidenced by one promissory note “substantially as follows,” and there is then set out a copy of the promissory note of March 27, 1925. The court

[588]