Lewis v. Silveira

SCHOTTKY, J. pro tem. Plaintiff and appellant, as administratrix of the estate of Manuel Lewis, deceased, commenced an action against defendant and respondent, setting forth four causes of action in her complaint. In the first she alleged that defendant was holding certain real property on “P” Street in Sacramento in trust for decedent upon the promise of defendant to reconvey upon demand, which she alleged defendant refused to do. The second cause of action is identical with the first except that certain real property on Second Street is the property involved. The third cause of action [490]is to quiet title to certain personal property at 1121 Second Street in Sacramento. In the fourth cause of action plaintiff and appellant claimed that the bar and café business at 1121 Second Street was at the time of the death of decedent on December 30, 1943, a partnership in which decedent owned a one-half interest. In the prayer of her complaint plaintiff asked to have her title as administratrix to the real and personal property quieted and to establish a partnership in the bar and café business and to require defendant to render an accounting thereof and to liquidate said business.

■ Defendant’s answer denied' the material allegations of each cause of action. In addition, he filed a cross-complaint in which he alleged that on April 19, 1926, decedent and plaintiff had executed and delivered to him their promissory note in the sum of $14,000, and that on April 23, 1927, decedent had executed and delivered to him his promissory note in the sum of $1,325; that the two parcels of property had been placed in his name at the request of decedent and as security for the indebtedness owing on said promissory notes, upon which no principal or interest had been paid, and that he held the real property as security for the payment of the notes. He prayed that the court determine that he had a mortgage on the real property for the amount due and that the same be foreclosed.

The answer of plaintiff and appellant to the cross-complaint denied that the real property had been conveyed to defendant as security for the notes, or that a mortgage existed or that no payments had been made. However, plaintiff and appellant did not deny the genuineness and due execution of the notes.

The trial court found in favor of defendant on all issues except as to the ownership of certain personal property described as a front bar, back bar, three pictures and twelve cups. Judgment in accordance with the findings was entered establishing a mortgage on the two parcels of real property to secure an indebtedness of $33,560, and directing that said mortgage be foreclosed. Judgment was also entered that defendant was the sole owner of the café and bar business and the personal property therein except the aforementioned front bar, back bar, three pictures and twelve cups, and quieting his title thereto. Plaintiff’s motion for a new trial' was denied and this appeal is from the judgment.