Passantino v. American Trust Co.

STURTEVANT, J. Plaintiffs, Francisco Passantino and Rosa, his wife, have appealed from a judgment in favor of the defendant quieting title to certain lands in Monterey County. In their complaint the plaintiffs claimed to be the [203]owners and entitled to possession. In its answer the defendant denied such claims and pleaded the laches of the plaintiffs and also certain statutes of limitation. It also filed a cross-complaint. In the latter pleading it set forth that heretofore it was the owner of a certain promissory note the payment of which was secured by a deed of trust, that a default occurred in the payment of said promissory note, the deed of trust was foreclosed, and that the defendant purchased the property at the foreclosure sale and ever since has been and is now the owner thereof.

The controversy arises out of the following facts: Francisco Passantino, hereinafter referred to as Francisco Passantino, Sr., was born in Italy. While residing in that country he married Antonia Balistreri. To them a son was born, this plaintiff, and who will hereinafter be called Francisco Passantino, Jr. While the plaintiff was a small child his father came to this country. He entered under the name of Guitano Balistreri and under the same name on January 23, 1891, he was naturalized. Soon after he arrived in America the father went to Santa Clara County and commenced to farm and continued in that occupation down to the time of his death. At the places where he resided he was known under both of the above-mentioned names. The plaintiff at about the age of ten came to this country and at once went to where his father was residing. At all times the plaintiff went under his true name. The plaintiff learned to read and write. When his father was naturalized he signed his name by making his mark. Whether he later became able to write his name is a controverted fact in the case.

Francisco Passantino, Sr., acquired two different parcels of land in Monterey County. One contained ten acres and the other contained 53.40 acres. Both parcels were claimed by the plaintiff in his original complaint, but later he dismissed as to the ten-acre tract, and the larger tract only is now involved in this action. The latter tract was formerly owned by Ralph Lowe. In 1902 he leased it to F. Balistreri & Co. At that time the father was known by both names as hereinabove mentioned. On August 26, 1904, Ralph Lowe made a deed of said tract to Francisco Passantino. It is upon the identify of the grantee intended by that deed that this whole action rests. This plaintiff claims he was the