Estrin v. Kasviner

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action to quiet title to a parcel of real property from the cloud cast thereon by a recorded deed of trust unsatisfied of record, defendant appeals.

The evidence being viewed in the light most favorable to the plaintiff (respondent) and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the material facts are:

On November 10, 1925, plaintiff and her husband, who is now deceased, were owners of a parcel of real property in the city of Los Angeles. On such date plaintiff and her husband executed and delivered to defendant’s husband, Leon Kasviner, who is also deceased, a promissory note in the sum of $3,000. They also executed and delivered a trust deed conveying the legal title to the real property above mentioned to the California Trust Company as trustee to secure the aforementioned promissory note. On July 1, 1929, plaintiff’s husband conveyed to her his interest in the real property described in the trust deed. Defendant’s husband died April 25, 1940, and she is the successor in interest to all his properties. Prior to November 10,1928, the promissory note above mentioned and the interest due thereon were paid by plaintiff’s husband to defendant’s husband and the note was delivered to plaintiff’s husband, who destroyed it.

This is the sole question presented for our determination:

Was there substantial evidence to support the trial court’s finding that the promissory note for which the trust deed had [19] been executed and delivered as security had been paid in full?

This question must be answered in the affirmative. Mr. Philip Garbus was called as a witness on behalf of plaintiff, and after testifying that he in 1925 was in the produce business in partnership with Mr. Estrin, husband of the plaintiff, with reference to the payment of the note gave evidence as follows:

“Q. And do you know whether any payments were made upon this note ? A. I do. . . .

“ Q. Do you know how long these monthly payments were made ? A. It was made until it was paid off.

“Q. Well, do you remember whether there was—

“The Court: When was it paid off, if you know? A. I remember it was paid off in about close to three years, I believe, because I do remember—