Bateman v. Long

WHITE, P. J. Plaintiff brought an action for the cancellation of a promissory note and deed of trust. Defendant Samuel 0. Long, into whose hands the instruments had passed, filed an answer, and by cross-complaint sought foreclosure and declaratory relief. Trial before the court, sitting without a jury, resulted in findings and judgment in favor of defendant and cross-complainant. Plaintiff has appealed from the judgment.

Appellant urges that the findings are not supported by the evidence; that the judgment is not supported by the findings; that the evidence does not support the judgment; and that the judgment is contrary to law. All of these contentions, upon examination of the record, resolve themselves into a single argument, to wit, that the evidence does not support certain findings of fact. The trial court found that Samuel 0. Long was a holder in due course of the promissory note secured by a deed of trust, and if this finding is supported by substantial evidence, appellant cannot prevail.

It appears that about April 6, 1948, plaintiff signed a promissory note for $3,600, payable to Golden State Construction Company, and secured by a deed of trust upon her property at 2717 Council Street, Los Angeles. These instruments were executed and delivered in connection with a contract between appellant and Golden State Construction Company for the remodeling of appellant’s premises, which contract had been made about January 30, 1948. After signing the note and trust deed appellant left them with James H. Lewis, secretary of Golden State Construction Company in the office of that company. Appellant testified that the note and trust deed were to be placed in an escrow. She [175]testified that she never acknowledged execution of the trust deed before a notary public.

The note and trust deed were assigned on April 16, 1948, by Golden State Construction Company, through Cordia F. Cotton as president and James H. Lewis as secretary, to Mortgage Discount Company, a partnership consisting of George A. Rubens and George L. Myers. It appears that this transfer was made as collateral security for the payment of a $1,500 note of Golden State Construction Company held by Mortgage Discount Company. On August 28, 1948, there was a balance of $1,316.06 due on the $1,500 note. On this date the $1,500 note was paid in full and the note and trust deed executed by appellant were transferred by Mortgage Discount Company to respondent, Samuel O. Long. The note and trust deed had been recorded in the office of the County Recorder of Los Angeles County on April 19, 1948.