Burkle v. Levy

Belcher, C. C. This is an action to set aside a deed of trust executed by the plaintiffs to the defendant Levy, as trustee. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and their demurrer was sustained. The plaintiffs declined to amend, and thereupon judgment was entered against them.

[251]Two points are made by the appellants: 1. That the plaintiff Eliza V. Burkle executed the deed of trust complained of without any consideration coming to her for so doing; and 2. That she was induced to execute the deed by the fraud and undue influence of her husband and co-plaintiff, Ferdinand Burkle, and of the defendant Levy.

1. It appears from the complaint that the plaintiffs were husband and wife, and that the property conveyed by the deed was a parcel of land in Los Angeles County, which was the separate property of the wife, and on which she had filed a homestead claim, and was residing with her husband. The husband was a merchant, and had become indebted to various parties in the aggregate sum of about three thousand dollars. The debts were all due, and the creditors were pressing for their payment. On the twenty-third day of May,1884,the husband, in consideration of an extension of time to pay his debts being given him by his creditors, entered into a written agreement to pay them in twelve equal monthly installments, the first installment, of eight and one third per cent of the whole amount, to be paid on the thirty-first day of July, 1884, and a like sum on the last day of each month thereafter till the whole should be paid. At the same time, and as a part of the transaction, the plaintiffs executed to the defendant Levy, as trustee, the dee'd in question. The deed, a copy of -which is set out in the complaint, recited the written agreement, and that it was made “in consideration of the said indebtedness, and of the extension of time for payment given, and in the further consideration of one dollar to them in hand paid by the party of the second part, the receipt of which is hereby acknowledged, and for the purpose of securing the payment of said sums as provided in said agreement under the provisions hereof.” It then empowered the trustee, in case of default in making the payments as provided, to sell the property, and out of the proceeds of the sale to [252]