Blair v. Squire

COOPER, C. This is an appeal by the San Francisco Tool Company from an interlocutory judgment and decree and from ah order denying its motion for a new trial. The action was brought by the plaintiff for the partition of a tract of land of about two hundred and fify-six acres, situate in the county of Alameda. The title was originally in one Walter Blair, who died intestate leaving surviving him, as his only heirs, his widow, Phebe A. Blair, and two daughters, Florence Ethel Blair, the plaintiff, and Mabel E. Squire, one of the defendants. On the twenty-third day of August, 1894, the superior court of Alameda county, by proper decree of distribution in the matter of the estate of said Walter Blair, distributed the said real estate to said widow and daughters herein named, in the proportions to which they werd entitled under the law. No question is made as to the validity of the said decree of distribution, and there is no conflict between the mother and daughters, and no objection by either of them, to the decree of distribution or to the interlocutory decree and judgment herein entered. The appeal has, in pursuance of a stipulation filed in this court, been dismissed as to the plaintiff, and the decree was satisfactory to all the defendants except the San Francisco Tool Company, which is the appellant herein. The appellant does not question the correctness of the decree as to the plaintiff, nor as to any of the defendants except as to the defendant Mabel E. Squire. For convenience, the San Francisco Tool Company will in this opinion be called the appellant, and the defendant Mabel E. Squire the respondent, as they are the only parties contending here and the parties to be affected by the judgment of this court.

On the twenty-third day of August, 1894, Phebe A. Blair, by grant, bargain and sale deed, duly executed and delivered, sold and conveyed all her interest in said tract of land to respondent, which deed was duly recorded in the recorder’s office of Alameda county. After this deed was delivered and recorded, and in the month of September, 1894, the appellant brought suit against Phebe A. Blair upon an indebtedness due [352]from her to said appellant. A writ of attachment was duly issued against said Phebe A. Blair, and levied upon all her right, title and interest in and to said real estate. The appellant in its answer herein did not deny the due execution, delivery and recording of the said deed to respondent, but alleged, upon information and belief, that the said deed was intended only as a mortgage to secure respondent for certain advances made by her to her mother, and certain indorsements and obligations made by respondent on behalf of, and for the benefit of, her mother, Phebe A. Blair. The real issue, and the only issue in the court below was as to whether the deed to respondent was in fact a deed or a mortgage. Phebe A. Blair was made a defendant but did not appear after being served with summons, and her default was duly entered. The case was tried in the court below without a jury, and the court found that the deed “was not given by way of mortgage or security, but was and is an absolute conveyance, as hereinbefore found.” The appellant claims that the said finding is not supported by the evidence, and, although the printed record contains eight hundred and sixty-two folios, this is the sole and only point to be determined here. We have carefully examined the record, and we think the evidence supports the finding. The learned judge of the lower court having seen and heard the witnesses and found the fact, under the elementary rule we cannot disturb the finding if there is any substantial evidence to support it.