Sohn v. Kittel

PETERS, P. J. By action 1 Civ. 14458 C. A. Sohn sought to quiet her title to a certain residence located in Oakland against the claims of Joseph J. Kittel and his wife, while in ac[826]tion 1 Civ. 14457 Kittel sought, through the medium of an unlawful detainer action, to recover possession of the same piece of property from A. A. Tieslau and Clara Tieslau, his wife, together with damages for the wrongful detention. The two actions were consolidated for trial and have been briefed and considered together on appeal. Sohn and the Tieslaus appeal from the judgments in favor of the Kittels, and from the additional findings made after entry of the judgments.

The basic problem involved is whether Kittel, who is the record owner of the property by reason of having purchased it at a trustee’s sale, is the owner of the property, or whether he in fact purchased it pursuant to an agreement with the Tieslaus to purchase it on their behalf. Sohn is a grantee of the Tieslaus, having received a deed from them after the foreclosure. If they lost their title by reason of the foreclosure, Sohn’s claims are without merit.

The property involved was purchased with the community funds of the Tieslaus in 1942, title being taken in the name of Clara Tieslau. She claims it as her separate property, and the trial court found it was her separate property. Thereafter, and until the time of trial, the Tieslaus resided on the property. In August of 1946, Mrs. Tieslau borrowed $17,500 from the Bank of America, which debt was secured by a first deed of trust on the property. The money secured from this loan was used by Tieslau in his business.

Tieslau was engaged in business in a partnership entitled A. A. Tieslau & Son. He had known Joseph Kittel for 10 or 12 years, and had had several business transactions with him. Admittedly Kittel, on several occasions, loaned Tieslau or the partnership various sums of money, unsecured. In 1946, the partnership became heavily involved, and in March of 1947 it became involved in an involuntary bankruptcy proceeding.

According to the testimony of Kittel, the partnership owed him about $9,000 in September of 1946. At that time Tieslau was badly in need of funds to pay certain outstanding checks, labor claims, and insurance premiums. Kittel, according to his testimony, which was believed by the trial court, refused to advance any more money without security, and suggested a mortgage on the house. Under these circumstances, in the fall of 1946, Kittel advanced an additional $2,500 to Tieslau, and other sums, and the Tieslaus gave him a $12,000 second mortgage on the property, which was recorded.