Prussing v. Prussing

BARNARD, P. J. This is an action to establish and enforce a trust in favor of the plaintiff with respect to certain real property standing of record in the name of the original defendant, Anita Prussing. The court found in all respects in favor of the plaintiff and this appeal is from [349]the judgment which followed. Pending the appeal Anita Prussing died and George L. Bates, as administrator of her estate, has been substituted herein. For convenience, we will refer to Anita Prussing as the defendant and appellant.

On February 5, 1932, the appellant was appointed executrix of her deceased husband’s estate. Among the assets of the estate was a note for $6750, secured by a mortgage on the real property here in question. The note was payable September 17, 1929, and the mortgagor had conveyed the property to M. R. Cobb and three other persons. The decedent, in his lifetime, had signed a written agreement with M. R. Cobb purporting to extend the due date of the note to September 17, 1932. The validity and sufficiency of this extension agreement has been and is attacked but is not material on the present appeal.

On October 31, 1932, the property was deeded by Cobb and the other owners to the appellant individually, and the deed was recorded on May 8, 1936. On March 20, 1936, she was removed as executrix and on March 26, 1936, this respondent was appointed as administrator with the will annexed of that estate. On April 8, 1936, the appellant filed a report as executrix accounting for rentals received from the property and charging the estate with taxes she had paid thereon.

On September 16, 1936, this respondent filed an action in the Superior Court of Los Angeles County to foreclose the mortgage above referred to. Before any issue in that action was determined another action was filed in Orange County by this respondent against this appellant, seeking damages on the ground that she had negligently allowed the note secured by the mortgage to be barred by the statute of limitations. In that action the court held that she had been negligent and was liable for damages but withheld final judgment pending further proceedings in the foreclosure action which were directed to be taken. Thereafter, in the foreclosure action, a demurrer filed by R. M. Cobb was sustained on the ground that the agreement for an extension of time entered into by Cobb and the decedent was void for want of consideration and that the cause of action was barred by the statute of limitations. Thereafter, a final judgment