Lee v. Hibernia Savings & Loan Society

VICTOR E. SHAW, J.,

pro tem.

While in form this action is one to quiet title, its real purpose was to have declared void two instruments in so far as they affected the lot described in the complaint and owned by plaintiff. One of these instruments is a mortgage executed by plaintiff, together with her mother and brother, on August 1, 1913, to the Hibernia Savings and Loan Society, upon property which included that herein involved. The other is a deed of trust executed by the same parties on August 6,1913, whereby the same property was conveyed to R. McColgan and F. W. Morrison, trustees, to secure a loan of money made by Daniel A. McColgan.

The ground upon which plaintiff sought relief was that at the time of the execution of these two instruments she was a minor under the age of eighteen years. The court made findings and conclusions of law, followed by a judgment for plaintiff quieting her title as against the Hibernia Savings and Loan Society, and in favor of defendants Morrison and the McColgans, whose interest in the property was founded upon the deed of trust. Thereafter, the court made an order granting plaintiff’s motion made under section 663 of the Code of Civil Procedure, to vacate and set aside the judgment in favor of said last-named defendants upon the ground that the conclusions of law were inconsistent with the facts found. The conclusions of law were thereupon amended and a new judgment conformable thereto entered in favor of plaintiff, the effect of which was to declare the deed of trust, as well as the mortgage, void.

[658]

The appeal is from this judgment and prosecuted by Morrison and the McColgans, whose chief contention is that the findings do not support the amended conclusions of law and judgment.

The findings, other than as to facts hereinbefore stated, which are material to the controversy, are as follows: “That the plaintiff, Sibyl M. Lee, became eighteen years of age on the thirty-first day of December, 1914”; that at the time when plaintiff executed the deed of trust on August 6, 1913, given in consideration of the loan so made, she did not inform Daniel A. McColgan that she was under eighteen years of age; that about November or December, 1913, defendant learned that plaintiff was under eighteen years of age when she executed the deed of trust, and upon his threatening to have the trust executed on account of default in paying said note, she represented that she would be eighteen years of age on December 31, 1913, and promised if he would forego sale of the property on account of such default and advance to her and her mother an additional five hundred dollars under the security of the trust deed she would, after December 31, 1913, ratify and confirm the same; that such sum was advanced prior to January 14, 1914, on which date plaintiff and her mother, both knowing the same to be false, made affidavit that Sibyl became eighteen years of age on December 31, 1913, and on the same day (January 14th) ratified and confirmed the trust deed by executing an instrument fully set out in the findings, wherein she stated, “I also ratify and confirm that certain deed of trust, dated August 6, 1913, made and executed ... by myself in favor of Daniel A. McColgan”; that plaintiff prior to commencement of the action never disaffirmed her said acts in executing said deed of trust; that but for the security of said deed of trust defendant will be unable to enforce payment of the loan so made to plaintiff; that defendant was deceived by said affidavits as to plaintiff’s age, who, on August 6, 1913, had the physical appearance and mentality of an adult woman.