Vitruvian Corp. v. Laubisch

McWILLIAMS, J. pro tem. This is an action to set aside a trust deed and the trustee’s sale that occurred thereunder, and also to quiet the title to the property covered by the trust deed. Judgment was rendered in favor of defendants and plaintiff appealed.

The property involved had been acquired by appellant in 1933. At that time it was encumbered by the deed of trust referred to under which the Beverly Hills National Bank and Trust Co. was the trustee. On June 19, 1939, appellant conveyed the property subject to the deed of trust to one Neal V. Dow who, appellant claims, took the property as its trustee. The indebtedness, to secure which the deed of trust had been given, not having been paid when it fell due, the trustee gave notice of its intention to sell the property on January 18, 1940.

On January 17, the day before the sale was scheduled to occur, a Miss Wilhelminia E. Stowell, the assistant secretary of appellant, called upon J. Thomas Bussell, one of the respondents, in regard to the impending sale. The purpose of her visit and the conversation that ensued is a matter of dispute between the parties. Appellant in its brief correctly states that the question as to what occurred at that interview presents substantially the only conflict in the evidence in the case. Appellant contends that at the interview between Bussell and Miss Stowell she informed Bussell of the pendency of the foreclosure proceeding and requested on behalf of appellant, of which her brother was president and manager, that he loan a sufficient sum to pay off the indebtedness, offering as security for such loan a deed to the encumbered property. Miss Stowell explained in her testimony that appellant was a closed corporation and that she had authority from her brother to refinance the loan. According to Miss Stowell, Bussell inquired of her when the loan would be repaid. Her answer was that she might have the money in a few days or that she might not have it for thirty days or [362]possibly for a year. She further testified that Russell agreed to make the loan and stated that his fee for his services in so doing would be $100. Russell’s version of the conversation between them was altogether different. He testified that Miss Stowell informed him that the property which she said was then occupied by her sister, a Mrs. Fitch and her husband, was to be sold on foreclosure sale the following day. She explained that Neal V. Dow who held title to the property was unable to prevent the sale. She expressed a desire, according to Russell’s testimony, to buy the property for her sister, Mrs. Fitch. She told Russell that the property was worth between $15,000 and $20,000. She further stated, according to Russell, that she was expecting to receive $20,000 from an escrow in the near future and that if Russell would pay off the mortgage indebtedness and thereby prevent the sale she would procure a deed to the property from Dow, the record owner, and would thereafter buy the property from Russell at a price that exceeded the mortgage indebtedness by $1500. Russell testified that he accepted the proposition of Miss Stowell. Although Russell at that time had not seen the property he had the opinion of its value as given him by Miss Stowell. In addition he testified that he had inquired as to its value from a friend, W. T. Stockman by name, who had told him that the property was worth nine or ten thousand dollars. The lower court accepted Russell’s version of what occurred at this interview and by its finding to that effect we are of course bound. That finding is largely determinative of the case.