Loewenberg v. Schneider

THE COURT. In this cause respondents move to dismiss the appeal or affirm the judgment upon the ground that no substantial question is presented for decision. The point is well taken.

By her amended complaint plaintiff sought to impress a trust upon certain real property in Los Angeles, to secure an accounting of rents, issues, and profits, and to recover damages for waste. Defendants answered, and also filed a cross-complaint. Trial of the cause resulted in judgment for defendant in the sum of $3,296.39. Plaintiff appealed.

It appears that plaintiff owned real property in Los Angeles which she had encumbered with a $12,000 first mortgage to California Bank, and a $6,000 deed of trust to defendants. She was in default upon payments due on both debts. Defendant Edward J. Schneider acquired the first mortgage, and also caused his deed of trust to be foreclosed. He then purchased the property at the foreclosure sale for $8,500. At the time there was due him from plaintiff the sum of $10,350.59, or a balance of $1850.59 after allowing credit for the purchase price. On trial of the present cause plaintiff endeavored to show that said defendant had occupied a relation of trust toward her; that he had induced her not to refinance the property by promising her that if she would permit him to acquire the first mortgage without opposition, and to effect a friendly foreclosure of the trust deed, he would then hold the property in trust for her. Said defendant to the contrary alleged and asserted that he purchased the first mortgage for the amount due thereon in order to protect his second deed of trust; that he occupied no position of intimate friendship or confidence toward plaintiff, and that he made no promises, or false representations to her. By cross-complaint he sought judgment for the balance due him under the trust deed of $1850.59, with rentals, interest, etc., or a total of $3,296.39. The trial court found on all issues in favor of defendant, and entered judgment [307]awarding him the sum prayed by his cross-complaint. Among other things the court specifically found that it was not true that defendants were intimate friends of plaintiff, or that plaintiff reposed the utmost trust and confidence in defendant Edward J. Schneider, or that she made any agreement with him whereby he became obligated to protect her interest from foreclosure, or that there was any trust relationship between them.

On appeal it is contended that these findings are erroneous. In fact, the question of the sufficiency of the evidence is the only major contention urged in appellant’s opening brief, and it is argued under various headings. The remaining questions listed relate to issues not raised by the pleadings, or other immaterial matters which do not merit discussion.