Suytar v. Weineke

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an equitable action to declare a trust in real property which was purchased at a foreclosure sale. The respondent is charged with having procured the title by fraud.

The appellant was the owner of a part of lot 39 of the Rancho Santa Ana in Ventura County consisting of 29.63

[590]

acres of farm land. January 17, 1922, she mortgaged the property to the Home Savings Bank of Ventura for $5,000. For default of payments when they became due, a suit for foreclosure was instituted. The mortgagor failed to appear or answer in that suit and a decree of foreclosure was rendered October 11, 1924, for the sum of $6,406.39. The following month the property was disposed of at sheriff’s sale to one Chaffee for the amount of the judgment. Five other judgment creditors of the appellant were made parties defendant in the foreclosure action. These claims were included in the decree of foreclosure preserving their rights of redemption. Within the period of redemption the respondent purchased the equity of one of the judgment redemptioners which was duly assigned to him. The property was then redeemed by the respondent on November 9, 1925, through his attorney Clark, pursuant to the provisions of section 702 of the Code of Civil Procedure for the sum of $7,175.16. A sheriff’s deed to the property was executed and delivered to the respondent who thereupon took possession and made valuable improvements. The appellant had previously abandoned the occupancy of the premises.

This suit was commenced in July, 1927, to establish a trust in the respondent for the benefit of the appellant on the ground that the property was redeemed and acquired by the respondent by means of fraud. It is contended that a trust

eso maleficio

was thus created by law in favor of Eaphaelita Suytar.

The complaint alleges that prior to the expiration of the time allowed by law for the redemption of the property from the foreclosure sale the respondent “promised plaintiff that he would loan her the money to make such redemption; that he would take care of the matter and redeem it for her; . . . that she need not look elsewhere for help; that he would take her to the sheriff’s office in the afternoon of the last day of the period of redemption (so) that she could redeem said, property for herself . . . ”, It is not alleged that the appellant ever offered to go with the respondent to redeem the property pursuant to his alleged promise to do so. It is not alleged that the appellant could have procured the money elsewhere with which to redeem the property if she had not relied on the foregoing promise of the respondent. There was no offer or tender to compen