Security-First National Bank v. Perrine

MAXEY, J., pro tem. On or about August 3, 1928, Mrs. Mary L. Smith, the mother of defendant and appellant, bor[224]rowed from the Security-First National Bank of Los Angeles, the sum of $5,908.32, at the request of bhe defendant and appellant, and for her use and benefit. The- defendant and appellant received this money and used it for her own purposes.

On November 15, 1928, Mary L. Smith died testate, and by her will bequeathed approximately $2,000 to Reno Smith, her son; the residue of the estate to be divided equally between defendant and Reno Smith. The will of Mary L. Smith was duly permitted to probate, and Security-First National Bank of Los Angeles appointed administrator with the will annexed of said estate, on June 14, 1929. Subsequently thereto an inventory and appraisement of the property. of the estate was duly and regularly filed, showing an appraised value of real property in the amount of $62,500 and personal property of $7,500.

On or about October 6, 1930, the defendant and appellant executed a note to the plaintiff herein for $5,908.32. Admittedly, this is for the same moneys borrowed by Mary L. Smith on August 3, 1928.

Under date of March 31, 1931, the defendant and appellant, to secure the payment of the note of October 6, 1930, transferred, conveyed, assigned and set over to plaintiff and respondent, “all my right, title, and interest in and to the estate of Mary L. Smith, deceased”, etc.

The complaint is predicated upon the note, and prayed for the foreclosure of defendant and appellant’s interest in the estate.

The answer admits all of the allegations of the complaint, save and excepting the execution and delivery of the note and the security therefor, and of the attorneys’ fees incurred in connection with the suit. The answer further alleges affirmatively the lack of consideration for the making of the note, and also pleads fraud in the making of the note. The fraud is based upon allegations of dual representation upon the part of an attorney who attempted to represent the plaintiff and also the defendant. The attorney is not a party to the action, nor does he appear as an attorney of record in these proceedings. The trial court found the allegations of the complaint to be true, that there had been an execution and delivery of the note and security and an express finding that there was no [225]