First National Trust & Savings Bank v. Edmonds

BARNARD, P. J. This is an appeal from a judgment quieting plaintiff’s title to certain real property.

The complaint is in the usual form, paragraphs IV and V thereof alleging ownership and right of possession in the plaintiff and the invalidity of any claim of interest asserted by the defendant. The answer makes no general denial of these allegations but with respect thereto “Denies the allegations of paragraphs IV and V and alleges that the ownership, seizure in fee and right to possession of the lands and premises described in plaintiff’s complaint are as in this defendant’s second and affirmative defense set out”. In the second defense which follows this allegation it is alleged that on July 11, 1931, the defendant, after authorization duly obtained from the court in the probate proceeding, borrowed $25,000 from the plaintiff and executed and delivered a note for that amount, payable three years after date with interest at 7 per cent, together with a trust deed covering the property in question as security for said note; that the defendant was unable to pay said note when due and on or about November 30, 1935, the defendant entered into an agreement with the plaintiff, a copy of which is attached to the answer; that on that date, pursuant to this agreement, the defendant filed in the estate proceedings “a petition for leave to compromise the claim of plaintiff against said estate on said promissory note by the making, execution and delivery by this defendant as such administrator of a deed conveying the property in plaintiff’s complaint described, in full compromise, accord, satisfaction and settlement of said note for twenty-five thousand dollars”; that said petition came on for hearing and the court sitting in probate entered an order directing the defendant as said administrator to make and deliver a deed conveying said real property to the plaintiff; that thereafter and pursuant to said order the defendant as such administrator executed and delivered such a deed; that by the agreement referred to it was provided that the defendant as such administrator should be given and he was given an option to repurchase said real estate as a whole or in parcels on payment of certain sums and interest thereon as set forth in said agreement; that at the time the defendant entered into said agreement, filed said petition for leave to compromise, secured said order of the court, and made and delivered the deed he was unable to pay the note with the interest and ac[28]crued taxes and was threatened with foreclosure of the deed of trust by the plaintiff; and that for this reason he entered into said agreement, procured said order and “executed and delivered said deed in lieu of and to avoid foreclosure of said deed of trust”. It is then alleged that the defendant submits to the decision of the court as to whether “said action in lieu of and to avoid foreclosure is sufficient to divest this defendant as such administrator and said estate” of title in and to these lands without foreclosure proceedings or trustee’s sale proceedings; that this answer and defense is thus submitted by reason of the fiduciary status of said defendant as such administrator; and that the property in question was originally appraised in said estate at $160,000 but was, on November 30, 1935, and ever since has been, of the value of $75,000.