Fernandez v. Security First National Bank

NOURSE, P. J. Plaintiff sued to impress a trust upon real property and for an accounting. Findings and judgment were both entered favorable to defendant.

The appellant states as the question involved on this appeal: “Was the evidence offered sufficient to establish an alleged oral agreement to allow plaintiff to redeem the real property . . . and to entitle plaintiff to ... an accounting. . . . ” We must of necessity first criticise the statement of [676]the issue. When the findings are adverse to appellant there is never a question on the appeal whether the evidence would have sustained a finding favorable to him. If the competent evidence supports the finding which was made that ends the controversy on the question of the “sufficiency” of the evidence. It should be borne in mind further that, when the appeal rests on the question of the sufficiency of the evidence to support the finding which was made, the appellate court must accord to the finding made the benefit of all presumptions and inferences fairly applicable to the facts in evidence.

With these rules in mind we will not attempt to make an extended reprint of the evidence, but will rest upon a brief statement of the facts which support the findings of fact and the judgment.

Prior to June, 1934, plaintiff owned certain real property subject to a first and second trust deed held by O. W. Bashaw. In October, 1934, the property was sold, after notice of default to a party acting for Bashaw. Certain showcases and market fixtures had been placed in the premises by plaintiff which he was purchasing under a conditional sales contract. Plaintiff had assigned his equity in this property to Bashaw, as additional security for his obligation under the deed of trust, and, after Bashaw’s death, plaintiff sued his administrator seeking to establish a trust in these properties because of an alleged oral agreement with Bashaw to allow plaintiff one year to redeem.

For proof of the alleged agreement the plaintiff relied upon testimony of conversations held on June 26, June 27, and June 28, 1934. These conversations were in the form of oral negotiations looking to an agreement whereby the plaintiff should undertake to execute a grant deed to Bashaw to save the latter from foreclosure proceedings and, in consideration therefor, Bashaw was to give plaintiff a six months’ option to repurchase the properties. To give plaintiff an opportunity to consult an attorney the parties agreed to meet again on June 27th, but plaintiff failed to keep the appointment. It is conceded that no definite agreement was made on June 26th, and that the conversations with plaintiff’s brother on the 27th resulted in nothing more than a postponement until the following day. The parties met in the office of plaintiff’s brother on June 28th. A deed was then